By Amanda Spalding, Lecturer in Law, University of Sheffield

Photo credit: Gzen92, via wikicommons media

Introduction

With a large influx of Ukrainian refugees into Europe, alongside policies like offshore asylum processing in Denmark and the UK, and increasing irregular entries reported by Frontex, the landscape of migration laws and policies is constantly shifting. Amidst these changes, it’s vital to examine the legal context, especially the human rights framework meant to safeguard individuals. However, this protection is proving insufficient and is being eroded by emerging legal trends.

This post highlights key themes from my book, “The Treatment of Immigrants in the European Court of Human Rights.”

The Blurring of Immigration and Criminal Law

Academics have long observed the increasing overlap between criminal justice and immigration systems, often termed “crimmigration.” This trend manifests in various ways, notably in the law itself. Immigration law is increasingly intertwined with criminal law through the creation of numerous immigration offenses.

Basic acts like entering or residing in a country without authorization are widely criminalized across Europe, with varying degrees of severity. Fines for such offenses range from relatively minor sums in countries like the Czech Republic and Estonia to over €4,000 in countries including Austria, Cyprus, Italy, and the UK. While most European nations, including the UK, set maximum prison sentences for these offenses between six months to a year, the actual use of imprisonment varies. Some countries seldom utilize it, while others, like Bulgaria and the Czech Republic, demonstrate a concerning pattern of imprisoning asylum seekers.

This criminalization extends beyond migrants themselves to those who provide them with assistance. The EU Facilitation Directive mandates sanctions for individuals who knowingly aid unauthorized entry or residence, particularly for profit. Though humanitarian exceptions are permitted, they aren’t mandatory, leading to inconsistencies in how assisting migrants is treated across different European countries.

Controversially, this has resulted in the prosecution of individuals offering help, the criminalization of maritime rescue efforts, and legal action against NGOs providing crucial assistance to asylum seekers and other migrants. Many countries have further broadened the scope of criminalization to include actions like housing individuals without legal residency.

The link between immigration and criminal law is further solidified by the increased use of immigration consequences for criminal convictions. Although deportation based on public safety concerns is not new, its application has become increasingly severe and punitive. In recent decades, countries such as the UK, Denmark, and Germany have enacted laws that make deportation an automatic outcome for various criminal convictions. The UK and Norway have even gone so far as to establish separate prisons specifically for foreign nationals.

Furthermore, the EU has witnessed a significant expansion in immigration detention centers, with diverse uses and types, as detailed by Elspeth Guild’s work for the European Parliament. Surveillance of migration has also intensified significantly. The EU has developed extensive border control systems, including databases like EURODAC for migrant fingerprint data, VIS for biometric information on visa applicants in the Schengen zone, and Eurosur, a system using advanced technology like drones and satellites to monitor and control irregular immigration. The very use of such technology, especially fingerprinting, carries connotations of criminal activity, and this is exacerbated by granting access to this data to law enforcement agencies like Europol.

Insufficient Protections: The Issue of “Undercriminalization”

While the criminalization of immigration is a multifaceted issue with far-reaching implications, including the often-negative rhetoric surrounding migration in Europe, focusing solely on it might distract from a more significant concern: “undercriminalization.”

The intricate systems and powers within immigration policy and law mean that migrants face many of the same stigmas and severities associated with the criminal justice system, often without the corresponding procedural safeguards. As legal scholars Ashworth and Zedner argue, “undercriminalization” occurs when states employ police powers against citizens through non-criminal channels with inadequate protections, failing to afford individuals the rights and safeguards they deserve given the potential restrictions on their liberty.

Paradoxically, migrants might be better served if the entire immigration system were criminalized. This would afford them greater procedural safeguards and judicial oversight. However, the current situation might indicate the emergence of a two-tiered system within both human rights and criminal justice. The UK government’s proposed Bill of Rights Bill exemplifies this by attempting to curtail specific human rights, particularly for foreign national offenders.

The European Court of Human Rights and Migration

To grasp the risks of such a two-tiered system, it’s crucial to understand how the European Court of Human Rights (ECtHR) has addressed the increasingly harsh realities of immigration systems and where it falls short in providing adequate protection.

For instance, the lack of a robust necessity and proportionality test when assessing the arbitrariness of immigration detention leaves it with less protection than other forms of detention. Similarly, the Court’s failure to consistently apply the right to a fair trial (Article 6) to immigration decisions is a significant concern that has received inadequate attention, despite the fundamental importance of this right in checking state power. As immigration detention and decision-making become increasingly intertwined with criminal law, scrutinizing the legal approach to these issues is essential. Scholars across various disciplines are challenging the traditional legal view of immigration measures as non-punitive.

Finally, it’s crucial to recognize that the trend of criminalizing immigration is part of a broader pattern of increasingly harsh immigration regimes in Europe. While this phenomenon might amplify the severity of treatment and exacerbate existing problems, it doesn’t represent the root cause of the ECtHR’s failure to fully protect migrants.

As highlighted by scholars like Professor Costello and Professor Dembour, there are inherent issues in how the ECtHR approaches migrants’ rights. To understand the treatment of immigrants in Europe fully, it’s crucial to look beyond the framework of criminalization. The ECtHR’s lack of proper scrutiny regarding state immigration policies and power could allow racial discrimination to persist unchecked and might even erode rights for everyone, not just immigrants. This demands rigorous examination and critical attention.