Blog post by Marta Minetti, Queen Mary, University of London, and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration.
The deterrence of illegal entry into the UK and “breaking the business model of criminal [smuggling] networks” constitutes one of the three main objectives that the New Plan for Immigration (“NPI”) aims to achieve through the reforms included in the document.
As proposed methods to achieve these goals, the Home Office foresees the expansion of the existing law enforcement and border control powers and the introduction of tougher criminal offences, both for migrants for those actors assisting their unlawful entry in the UK. In other words, the plan proposed by the Home Office to achieve the fairness paradigm emphasised in the foreword of the NPI is based on the assumption that a strengthening of penal measures aimed at countering the activities of those actors involved in the irregular mobility processes will result in the improvement of the abilities of the government to provide protection to the migrants regularly arriving on the UK territory. The Home Office justifies the toughening of the penal measures both against illegal entry and its facilitation through the reliance on “national and moral” interest grounds, on the necessity to control and manage the UK borders, and on the principle of “fairness” underpinning the logic of the NPI.
This blog argues that the actions proposed by the Home Office to achieve the stated goal of the NPI (the widening of the existing powers and the toughening of the criminal law framework to tackle those who assist unlawful immigration and the overhauling of the clandestine civil penalty regime) lack normative foundations, are essentially aimed at communicating to those citizens fearful of foreigners a ‘semblance of security’, rather than being concerned with the actual imposition of the sanctions threatened.
The lack of normative foundations of the UK definition of migrant smuggling
According to the NPI’s introduction to chapter 7, the necessity to counter irregular migration and its facilitation lies on a two-fold basis:
- The assumption that the assistance of unlawful immigration is carried out by ‘the same criminal gangs and networks [who] are also responsible for other illicit activity, ranging from drug and firearm trafficking, to serious violent crimes’
- The assumption that those criminal networks are responsible for endangering the lives of the migrants by facilitating entry via unsafe means and the ‘moral imperative’ to save those lives by intensifying the penalties for the facilitators.
The wording of these points alone is problematic for several reasons. Firstly, it oversimplifies the complex dynamics involved in irregular border crossings, suggesting this is exclusively the work of organised criminal networks when this has been proven inaccurate in countless studies from a diverse range of disciplines (see also here and here). Secondly the wording replicates the objectives of the UN Smuggling Protocol, which was specifically designed to eliminate safe havens for transnational organised crime (TOC) and protect the rights of migrants by harmonising the international legal frameworks on the topic. However, the UK definition of assistance of unlawful immigration does not transpose all the constitutive elements of the UN smuggling offence. More specifically, similarly to the EU law definition of the crime of facilitation of illegal entry codified in the Facilitators Package (Directive 2002/90/EC and Framework Decision 2002/946/JHA), it leaves out the purpose element of the crime of obtaining financial or other material gain. In fact, as set out in the explanatory memorandum to the Immigration (Assisting Unlawful Immigration) […] Order 2004, “[t]he changes made to the 1971 [Immigration] Act (…) are designed to give effect to [the] obligations under Community Directive 2002/90/EC concerning facilitation of unauthorised entry, transit and residence.” Additionally, the omission of the purpose element is in direct contradiction to the recommendations included in the Global Compact for Safe, Orderly and Regular Migration (Marrakesh Compact), enthusiastically endorsed by the UK in 2018. In fact, the Compact explicitly calls on states to “[a]dopt legislative and other measures as may be necessary to establish the smuggling of migrants as a criminal offence, when committed intentionally and in order to obtain, directly or indirectly, a financial or other material benefit for the smuggler.”
Compared to the UN approach to the issue of migrant smuggling, the Facilitators’ Package fulfils a different, more ‘practical’ function: besides attempting to align the legal structures of the different Member States (MS), the EU bodywork was put in place in order to counter the irregular arrivals of migrants inside EU borders, rather than countering TOC or protecting the rights of the individual smuggled across borders. The scope of the Facilitators’ Package includes the activities carried out by members of civil society and humanitarian actors, rather than limiting its action to the illegalisation of activities carried out by criminal groups. It is in this context of criminalisation of humanitarian actors, enabled by the over-extensive scope of the offence of facilitation of illegal entry, that the normative foundations of the EU Facilitators’ Package as a criminal law provision have been put into question and successfully challenged. The EU legislation on the facilitation of illegal entry has been harshly criticised for its lack of normative foundation and for the consequent risk of populistic abuses of criminal law to communicate to the citizens a sense of security that the over-extensive scope of the provision enables. The justification for the implementation of the Facilitators’ Package lies in protection of territorial sovereignty and welfare of the Member State against the action of two types of perpetrators: migrants ’illegally’ crossing borders and smuggling networks, which closely recall the wording of the NPI.
The fairness paradigm which the NPI measures aim to achieve and the (faulty) assumption that in order to provide a fair approach harsher criminalisation is needed are not substantiated and reflect a panic-led approach designed to soothe the emotional needs of the British electorate through the promise of fast and exemplary criminal law measures that do not and cannot have application in the legal field. In fact, despite the fact that the current maximum penalty for the crime of assisting unlawful immigration amounts to fourteen years, jurisprudential research shows that the vast majority of sentences do not exceed five years.
The security threat allegedly posed by the presence of migrants irregularly entering or staying within the UK territory lacks reliable validation and, consequently, the use of criminal law tools to deal with what should be considered a violation of administrative law, can be considered a reflection of the populistic political trends that have increasingly emerged in the UK. The preventive function adopted by criminal law, fed by the need for reassurance of security from future crimes, results in an increased relevance and powers of law enforcement agencies in charge of combating a de-personalised criminal phenomenon rather than a specific perpetrator.
The blog has highlighted the inherent inconsistencies and inaccuracies on which the strategies proposed in the reforms of the New Plan for Immigration are based. Despite the fact that the overcriminalisation of the foreigner is claimed to be essential to achieve the “fairness” paradigm advocated for in the Plan, it is clear that the drafters of the NPI base their claim on logically and factually faulty assumptions. Furthermore, the reforms proposed in the Plan and the toughening of the penal framework for the assistance of irregular migration are not and cannot be applied in the legal field, which suggests that the provisions advocated for in the Plan would fulfil a symbolic function, which makes their application unpredictable. This is in blatantly incompatible with the principle of foreseeability and of the law and of legal certainty: two constitutive pillars of the Rule of Law.
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