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The Wrongs of Unlawful Immigration

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Abstract

For too long, criminal law scholars overlooked immigration-based offences. Claims that these offences are not ‘true crimes’ or are a ‘mere camouflage’ to pursue non-criminal law aims deflect attention from questions concerning the limits of criminalization and leave unchallenged contradictions at the heart of criminal law theory. My purpose in this paper is to examine these offences through some of the basic tenets of criminal law. I argue that the predominant forms of liability for the most often used immigration offences are, at least in principle, controversial and depart from what is often presented as the paradigm in criminal law. Above all, immigration offences are objectionable because they fall short in fulfilling the harm principle and, given that criminal punishment as used against immigration offenders is often a secondary, ancillary sanction to deportation, they license excessive imposition of pain.

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Notes

  1. Although there are valuable and important exceptions: e.g., Zedner (2010, 2013).

  2. Ss 4(1) and 6(1), Identity Documents Act 2010.

  3. Ss 1(3)(g) and 18(1)(b), Aliens Order 1920. This offence is no longer in the statute book. It has been replaced by the offences of illegal entering and remaining in the UK in breach of conditions (S 24, IA 1971). In contrast, the status of ‘illegal entrant’ is not a criminal offence.

  4. Although, Duff argued that ‘landing’ on UK soil counts as a voluntary act (Duff 2009: 58). Such a wide reading of the voluntary act requirement—she was compelled by law enforcement agencies to disembark on UK soil—waters down the principle of individual autonomy in criminal liability.

  5. Larsonneur (1934) 24 Cr. App. R. 74 [at 78].

  6. S 26(1)(d), 1971 Act.

  7. S 26A(3)(c), 1971 Act.

  8. S 26A(3)(h), 1971 Act.

  9. S 26B(1) and (2), 1971 Act.

  10. Ss 6(1) and 4(1), respectively, Identity Documents Act 2010 (which repealed the Identity Cards Act 2006 containing similar offences).

  11. Simple possession which is a ‘triable either way’ offence is punished with a maximum of 2 years imprisonment on indictment.

  12. S 32, UK Borders Act 2007.

  13. In two recent judgments, the Court of Appeal has quashed convictions for possession offences against successful asylum seekers who pleaded guilty to the charges despite having a defence available: R v Mohamed Abdalla and Others [2010] EWCA Crim 2400; R v Koshi Mateta and Others [2013] EWCA Crim 1372. Although there are no precise figures, it is feared that many more people with credible asylum claims have been wrongfully convicted for these offences: Criminal Cases Review Commission (2012: 15).

  14. S 2(1), Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. This offence produced, on average, 44 per cent of immigration convictions in magistrates’ courts in the last 4 years.

  15. They exclude forms of ‘commission by omission’ which can be quite easily equalled to forms of commission.

  16. S 35(3), 2004 Act.

  17. See R v Tabnak [2007] All ER (D) 223 (Feb) rejecting the argument that fear of prosecution or serious harm counts as reasonable excuse.

  18. Further three offences require knowledge as to circumstances [s 26(1)(c)] or ulterior intent [Ss 26A(3)(e) and (g)].

  19. Gammon Ltd v AG of Hong Kong [1985] 1 AC1 [at 14].

  20. See, for instance, Soe Thet v Director of Public Prosecutions [2006] EWHC 2701 (Admin); R v Farida Said Mohammed; R v Abdullah Mohamed Osman [2007] EWCA Crim 2332.

  21. Following the Privy Council, the presumption of mens rea is stronger where the offence is ‘truly criminal’ as opposed to ‘quasi-criminal’ or regulatory, the only circumstance in which such presumption can be displaced is when the offence aims at protecting an issue of social concern and the creation of a strict liability offence will be effective in promoting such aim: Gammon Ltd v Attorney-General of Hong Kong [1985] 1 AC 1 [at 14].

  22. See e.g., Director of Public Prosecutions v Sheldrake [2005] 1 AC 264.

  23. R v Navabi; R v Embaye [2005] EWCA Crim 2865 [29].

  24. Nor for that matter is it a feature exclusive to immigration offences in general: over half of the offences in English law are of strict liability.

  25. The Aliens Restriction (Amendment) Act 1919, S 13(1), and the Aliens Order 1953, S 25(1), contained similar provisions.

  26. S 25(3)(a), Aliens Order 1953; s 4(3)(a), CIA 1962. In the latter, though, a mens rea requirement as to the circumstances was introduced.

  27. S 4A, CIA 1962.

  28. Otherwise, they are liable to a civil penalty.

  29. Respectively, Ss 25(1) (assisting unlawful immigration) and 25B(1) (assisting entry to the UK in breach of deportation or exclusion order) and S 25A(1) (helping asylum-seeker to enter UK), 1971 Act.

  30. S 19D(1), Race Relations Act 1976. Authorizations are subject to prior approval by legislation or a Minister. An example of it is the Equality (Transit Visa, Entry Clearance, Leave to Enter, Examination of Passengers and Removal Directions) Authorisation Act 2011 (authorizing differential treatment in granting visas, declining to give or cancelling a leave, or prioritizing removal against nationals of certain countries which appear in a list approved by the Minister).

  31. The UK Border Force has been harshly criticized by ethnic minorities and migrants’ groups for allegedly targeting non-whites in raids on public transport in the context of operations to crack down on illegal immigration: Sky News, ‘Home Office Immigration Tactics Investigated’, 2 August 2013. http://news.sky.com/story/1123466/home-office-immigration-tactics-investigated. Accessed 8 August 2013.

  32. In a recent study, Dustmann and Frattini (2014) found that, in the period between 1995 and 2011, migration to the UK had made an overall positive fiscal contribution. EEA migration has made a positive contribution during the whole period, while non-EU migration made a negative contribution during the period of economic downturn. Migrants, the authors explain, tend to claim fewer social benefits and exhibit higher average labour market participation compared to natives, while having educational qualifications obtained elsewhere (i.e., without costs to the UK) and contributing to financing public services.

  33. R v Wang [2005] EWCA Crim 293 [10]; R v Kolawole [2004] EWCA Crim 3047.

  34. Although there is no statistical data corroborating this point, research done on British courts found that non-UK defendants prosecuted for offences related to their unlawful entry to the country are meted out with custodial sentences (Aliverti 2013).

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Acknowledgments

I am grateful to Antony Duff, Ambrose Lee, Lucia Zedner, Alessandro Spena and Victor Tadros for very helpful comments on earlier versions of this paper which significantly improved it. Thanks also to two anonymous reviewers from Criminal Law and Philosophy and to participants of the ‘Crimmigration and Human Rights Workshop’ at the Robina Center, University of Minnesota Law School (October 2013), where a draft version of this paper was discussed.

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  1. Warwick Law School, University of Warwick, Gibbet Hill Road, Coventry, CV4 7AL, England, UK

    Ana Aliverti

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Aliverti, A. The Wrongs of Unlawful Immigration. Criminal Law, Philosophy 11, 375–391 (2017). https://doi.org/10.1007/s11572-015-9377-y

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