05 July, 2021
Over the past few years, we are witnessing growing political debates concerning migration and issues it has carried along. With the increasing resistance between authorities and the individual migrant or group of migrants, the debate has been more pertinent in Europe, where immigrant influx has been in rise in the recent years (Nunziata, 2015, p.698). The phenomenon originated in the Fordist economies of America and Western Europe in form of foreign labor-feared as criminals in between 1050s to 1970s ( De Koster & Reinke, 2017) but is now well established in most of the countries in America, Europe and Australia. And with the rise of Former US President Donald Trump with his anti-immigrant election campaign the world seems more polarized.
People always tend to move from one place to other in search of better and more comfortable life. People migrate from their home country to another due to different reasons like poverty, war, famine, natural disasters, religious persecution, lack of human rights and freedom etc. It is natural that people always will strive for opportunities and prosperity. However, people are becoming more hostile against (im)migrants and these migrants are being criminalized in an alarming manner (Hudson, 2007).
In the past few decades, the world has become more fluid in movements of goods, and capital with globalization and various trade and investment agreements, on the other hand free movement of people have been more rigid with several restrictions imposed by receiving countries (Chacon, 2010). Both the people motivated with dream of perusing a better life and economic prosperity and people who have no other choice than to flee their homeland due to war and oppression are affected by these restrictions. In the past decade the world has seen unprecedented numbers of refugees like Syrian refugees and Rohingya refugees who are forced to flee from their country. According to the data published by UNHCR, 6.6 million Syrians are taking shelter in other countries after fleeing the war. Facing the surprising wave of refugees and job seeking migrants the western countries are creating rigid legal barriers with various criminal categories like illegal and irregular migrants and linking them with wide range of crimes. In their effort to manage immigrants, the countries impose restrictive immigration policies which as a result produces their status of illegality, at the same time the systemic use of given criminal status together with administrative detention and deportation as main strategy of European nations to fight against the unauthorized immigration forms a ‘dynamic of hyper-criminalization’ of these immigrants (Goirgo, 2010).
Migration and immigration:
According to the International Organization for Migration, UN, in common understanding a migrant is a person who moves away from his or her place of initial residence within his/her country or across the international border, temporary or permanently due to various reasons under different legal categories such as migrant workers; people having authorized movement and smuggled migrants; who are defined as illegal, irregular or unauthorized migrants.
The number of international migrants increased more than double from 103 million in 1980 to 220 million in 2010, and it stood 232 million in 2013 which is projected to double to over 400 million by 2050 (Martin, 2013). For almost hundred years after the founding of the United States, it welcomed foreigners to settle in the country but in the early 1880s the US government began to put certain qualitative restriction on immigration to the prostitutes, and the migrant workers with many years of contracts and to the Chinese (Martin, 2014). After the immigration law was changed in 1965, the US saw the rise in Latin and Asian immigrants; US received average of 250,000 immigrants in the 1950s, 330,000 in the 1960s, 450,000 in the 1970s, 735,000 in the 1980s, and over a million since the 1090s (Ibid). Since the 90s the debate on foreign migrants has gain momentum as resurfacing fears of unwanted newcomers often configured by the friction between the authorities and the migrants sometimes termed as aliens.
Every year, with the arrival of around one million legal immigrants many are denied of entrance and many trying to enter and staying illegally are forcibly removed from the country (Huemer, 2010). Many of those become the victim of different crimes such as harassment, violence, human trafficking and even die in their attempt to enter illegally. Similarly, in almost all EU countries unauthorized entry and stay are regarded as punishable crimes and if the individual’s status is not regularized, EU legislation directs the EU members to issue return decision to the foreign nationals entered illegally or staying in an irregular situation (European Union Agency for Fundamental Rights, 2014).
In 2015, the German Chancellor Angela Markel stated that migration and asylum would “preoccupy Europe much, much more than the issue of Greece and the stability of the euro” – that it would be the major issue after the economic recession of 2007-08 and now almost everyone agrees with this statement (Blake, 2019). In 2016, Britain voted to leave the European Union was as a result of widespread fear of immigration rather than dissatisfaction on the political arrangements (Bulman, 2017).
Migrants as criminal other:
Over the past few decades the world has witnessed the growing set of public narratives linking “alien” with “criminal others” and describing the threats inflicted by the unauthorized migrants to the public security (Pratt & Valvarde, 2002, cited in De Koster & Reinke, 2017). The 9/11 terrorist attack in the United States can be considered as the incident that incited the authority on imposing stringent rules against the foreigners. The foreigners were subjected to lengthy and coercive interrogation, indefinite detention, tried in secret without benefit of counsel and even expelled from the US simply based on innocent political speech and associations post that incident (McCormick, 2004). The 2005 bombings in London is another unfortunate incident that hoisted the anti-immigrant sentiments in the west and in Britain particularly. Unlike September 11 attack the perpetrators of July 5 bombing were the men born and raised in the UK but were the descendants of immigrant community and many of the men involved in July 21 attack were the citizens who originally came into Britain as asylum seekers (Hampshire & Saggar, 2006). So in the public and government’s eye these undocumented migrants are not just unwanted, they are dangerous too making them more difficult than ever to enter and settle in the western countries. The growing security concerns on migration might not be the direct response of these violent attacks however, it is clear that these incidents gave an extra impetus to the formation of strict migration policies and these policies were well supported by the majority of public.
This narrative of outsider or alien is not a new phenomenon, it has a very long history. In the year 1517 May 1st around 2000 violent rioters took the street of London against the foreign apprentices accusing them of ruining local economy and taking their jobs, the incident which is labelled in the history as “Evil May 1517” (Paul, n.d.). One can easily find an uncanny similarity between the propaganda behind this event and the recent event of Brexit and the narratives circulated against the Mexicans in the election campaign of Donald Trump.
In the recent years, it is also evident that religion has become forefront narrative to criminalize the immigrants which was occupied by the ethnicity and cultural diversity in the twentieth century. Stereotypical labelling of some ethnic and religious minorities like Jews to commit ‘ritual’ murder as typical crime, catholic Irish labelled as drunken and ‘filthy’ and Latinos as drug dealers and rapists was very common in the past (De Koster & Reinke, 2017). The Islamic community has emerged as the ‘criminal other’ of our time. Muslim community has been referred as cultural ‘other’ in the West long before (Grosfoguel 2012; Said 1979), but in the recent years anti-Muslim beliefs and action has been in increased frequency labelled as ‘Islamophobia’ (Allen 2010; Helbling 2012) (cited in Gerteis et al, 2019).
However, different studies suggests that immigrants are less likely to be involved in criminal activities than the native born. In a report published in 2014 to analyze the antisocial behavior of immigrants in the US it is found that “native-born born Americans were approximately four times more likely to report violent behavior than Asian and African immigrants and three times more likely than immigrants from Latin America” (Vaughn et al, 2013). So as a result immigrants ending up in the prison is less likely than those native born. “According to the data from the 2010 American Community Survey (ACS) …. roughly 1.6 percent of immigrant males age 18-39 are incarcerated, compared to 3.3 percent of the native-born” (Walter, et al, 2015). The decennial censuses data also shows that this difference in the incarceration rates has been evident long before; in the 1980s, 1990s, 2000s the native born were incarcerated two to five times higher than the immigrants (Ibid).
Although there has been evidences that immigrants are less likely to be engaged in criminal activities than the native born unfortunately the immigration policies are frequently influenced by fear and prejudice that immigrants are unwanted and dangerous. As a result many of these policies are guided by their beliefs then the fact.
Criminalization of migration:
While major immigration laws are targeted towards the immigrants a number of instruments have been formed to punish the third party assisting the irregular immigrants to cross the border. Such as the people providing humanitarian or legal assistance, people rescuing migrants in distress at sea, landlords renting accommodation (European Union Agency for Fundamental Rights, 2014). At EU level the Facilitation Directive (2002/90/EC) Article 1 (1) (a) directs the member states to impose appropriate sanction to those who intentionally assist an irregular migrant to enter or transit through a Member State. The Facilitation Directive also obliges EU Member States to punish anyone who intentionally assists a foreigner to irregularly reside within the territory of member state of EU for financial gain. Meanwhile the Employer Sanction Directive (2009/52/EC) frames the minimum standard of sanction to those employers employing the illegally residing foreigners in the EU. Irregular entry and illegal stay are considered as offences in almost all EU member states and often punishable with imprisonment, in addition EU law also allows to detain the individuals being returned (European Union Agency for Fundamental Rights, 2014).
However, these laws are criminalizing the immigrant minorities in inhuman manner. Immigrants who are involved with the authorities in a least conflict are being subject to arrest and detention and often deported from the country. In 2010, a man named Jimmy Mubenga an asylum seeker originally from Angola died at Heathrow Airport while being restrained by the guards during the deportation process. He had been convicted and served two years in prison for causing actual bodily harm and he was applying for permanent UK residency but authority took decision to deport him (BBC). He was the fourteenth person to die during forceful deportation from European countries since 1991 (IRR European News Team, 2010). In 2019, 627,900 non-EU citizens were found to be illegally residing in all 27 member states of EU and among them 491,200 were ordered to leave the state that they were residing in and 142,300 migrants were removed (Eurostat, 2020).
In the US, According to the report Immigration Enforcement Action: 2019 released by US Homeland Security 360,000 aliens were removed from US in the FY 2019. Among those removed only 43% had prior criminal convictions which was similar to the average of entire 2011 to 2018 period. However, when we look at the data the majority criminal offences made by these classified alien criminals were not in those category of serious crimes as perceived by general people. The data shows that the immigration (entry and reentry false claims to citizenship, and alien smuggling) make up the highest share of 34.7% of the criminal categories, traffic offences (hit and run and driving under influence) make 10.6%, dangerous drugs (manufacturing, distribution, sale, and possession of illegal drug) make 10.3% and other serious crimes such as assault, burglary, sexual assault, sexual offences collectively make up to only 11.9% of the criminal offences for which the criminal aliens were removed (US Homeland Security, 2020). According to Immigration and Customs Enforcement (ICE) Enforcement and Removal Operations (ERO) report in 2020, a total of 185,884 aliens were removed from US.
Victim vs perpetrator:
Immigrants are vulnerable against the social crimes same as the non-immigrant community and they are more vulnerable given that status of ‘outsider’ or ‘alien’. Migrants are exposed to various risk of victimhood. They have been direct and indirectly suffered from victimization in their native country which make them to leave the country, during the migration phase, and the place of destination after arrival. Migrants in irregular situations are deprived of criminal justice system, medical facilities, children’s schooling, and religious services as the law requires the service providers to report the offence of illegal immigration and stay in the country to the concerned authorities (European Union Agency for Fundamental Rights, 2014).
As mentioned earlier, immigrants take decision to leave their country due to some situation of victimization. While war is currently the main push factor others include religious persecution, lack of human rights and freedom, political oppression. While calculating the pros and cons of leaving their country, they must go through the risk of various crimes in their journey to the destination. During their journey the migrants are extremely vulnerable and susceptible to be the victim of various crimes. Child migrants and undocumented migrants highly prone to the risk human trafficking, modern slavery, forced labour and exploitation and abuse during transit and upon arrival (Reliefweb, 2019). “Immigrants, alongside established ethnic and national minorities, are also acutely vulnerable to racially, ethnically and religiously motivated crime – or hate crimes” (Goodey, 2009, p. 150). However, the irregular migrants are considered as offenders rather than victim and they barely report the offences due to the fear of detention and deportation.
The debate of migration can be very contrasting when we look through the lenses of state sovereignty and human rights perspective. When we look through the concept of sovereignty the state has sole right to decide whether to give entrance to the legal or illegal immigrants and set up the criteria for citizenship and asylum. On the other hand, through the human rights perspective a person has right to leave and have the right to basic rights wherever they stay (Hudson, 2007).
Universal Declaration of Human Rights (UDHR) Article 13 (2) states that “Everyone has the right to leave any country, including his own ….”. As the emigration right is embodied in UDHR every individual is entitled to the right of moving across the international border but on the contrary there is no universal right of immigration laid out in any law or conventions. UDHR gives right to individuals to seek asylum in other country in fear of persecution and the Geneva Convention also imposes obligations to the states to receive those individuals; however, states have reservation of the right to decide whether the applicants have met the Convention requirements (Hudson, 2007). Around the globe people tend to suffer from various types of persecution; political, religious, racial and sexual. The people desperately wanting to flee from these situation and even from those countries plagued by wars, terrorism, inter-communal violence do not have the guarantee of asylum granted in other countries and they are the unwanted aliens often persecuted with criminal charges and eventually removed or deported.
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