Crimmigration Cycles: Reflexive approaches to the production of the delinquent other and migration control*

by Christoph Rass

Research on the merger of criminal law and migration law continues to fuel current debates that are both new and old to historians specializing in migration and migration control (de Koster & Reinke 2017; García Hernández 2017; Graebsch 2019; van der Woude et al. 2017; Walburg 2016). Crimmigration can be described as an act of migrating in illegal(ized) settings, and as a research method that focuses on the nexus between criminal law and migration law. As the latter, it highlights linkages between norms and policies installed to sanction behavior deemed as delinquent and the policing of “foreigners” and “migrants”, thus regulating their mobility across space and time.

This essay reflects on migration control and the production of the delinquent other and argues that one can interpret these dynamics over time as cycles of crimmigration. Informed by my research on migration regimes and pejorative ascriptions concomitant with regulating mobility, I will engage with this topic in three steps: I will lay out my theoretical argument, then I will continue with an empirical case study before offering a critical appraisal and some concluding remarks.

[1] How does crimmigration look like through the lens of Migration Regime Analysis (Rass/Wolff 2018)? Migration Regime Analysis aims at understanding how sets of individual and collective actors engage in the negotiation of migration framed by norms, institutions, beliefs, practices, and so forth, interwoven in complex and asymmetrical relations. Our reading of the concept Migration Regime is not one of a consciously constructed mechanism to control migration or a policy that has been planned and implementedstrategically beforehand. We use it as a mode to observe how migration is negotiated in complex scenarios in which no single actor is totally in control. That, for instance, allows us to factor migrant’s agency into this conceptual model rather than reproducing ideas of a top-down execution of policies. The way we see it, some actors that are usually connected to nation-states and their bureaucracies try to regulate migration and build structures accordingly. Other actors, usually migrants and their stakeholders, try to navigate and change such systems, driven mainly by aspirations aiming at some sort of improvement. Migration Regimes evolve in path dependencies that tend to amplify and reproduce dominant choices rather than producing radical change.

What is in a Migration Regime by Christoph Rass & Frank Wolff, 2018.

Nation-states seem to manage the ever-same scenarios regarding migration: the entry of non-nationals into the territory, the terms and conditions of their presence, and their removal if expedient. Through this modus operandi, migrants are constructed as “guestworkers,” “refugees,” “illegal migrants,” etc.. Migration is produced as something “good” or something “bad,” as beneficial or detrimental to the dominant order. At the same time, nation-states have developed structures to regulate deviant behavior and exercise social control. These structures are usually older than institutions in charge of the regulation of migration.

When nation-states began to recognize migration as a phenomenon deserving regulation and started to develop internal and external migration control, they had to choose which of their agents and institutions should be taking responsibility. The police seemed to be a good choice. Specialized administrations and norms targeting migration emerged much later. In German states during the nineteenth century, having the police deal with the regulation of mobility seemed an obvious choice given the broader understanding of policey and the conceptualization of the intruding foreigner as a potential threat. Building on that tradition, criminal law seemed an appropriate place to codify certain aspects concerning the regulation of migration.

We could thus argue that parts of migration law, particularly those parts which do not originate from international relations but from the policing of entry, presence, and removal of “strangers” (‘Fremde’) or “foreigners” (‘Ausländer’) by the nation-state and its agencies,  often grew out of police matters and was codified in criminal law.

Migration Regime analysis would support that, indeed, one could expect one of the more longstanding and stable relationships between regime elements like migration law and criminal law because they are kin from a historical perspective –such as administrations charged with policing criminals and those charged with policing migrants. Path dependencies in Migration Regimes tend to maintain such connections that were probably the historical normal in many places. It is the emancipation of migration law from criminal law – not just as a retreat into specialized laws targeting foreigners or (im)migration but as a form of turning away from regulating migration through criminal law – and this should indeed surprise us. If so, studying the relative position of both spheres longitudinally and comparatively – across time and space – could indicate how societies conceptualize migration and its regulation.

This refers to migration control gravitating around conventional betterment or economically-driven mobility. Refugee law took a different path but ended up with tight links to criminal law as well. This might hot have been written into its DNA from the very beginning. But the culturally embedded drive to use crime control for migration control might have contributed to an eventual merger. A cultural history of ideas or an intellectual history of migration control could help us to address this question.   

[2] In an earlier study, I looked at where deportation laws originated in the German Federation and in the German Empire (Rass 2018). We know about the connection between becoming a public charge and the production of deportability. During the first half of the nineteenth century, practices of local and statewide expulsions of foreigners were common in the German Federation. After the split of 1866/67, the North German Federation codified the main reasons for the expulsion of foreigners in its newly written criminal law, which was based on the Prussian criminal law and became the criminal code of the German Empire after the unification of German states in 1871. This process introduced banning non-nationals from the entire territory (aka “Reich”) for selected felonies but mainly when they became a public charge. Consequences of social distress were classified as felonies to be treated by criminal courts, and, as a result, deportations were applied as a logical consequence of the sentencing. In time, this became part of the German Ausländergesetz (Aliens Act) but the production of deportability in modern Germany based on an actual law has its roots in the inscription of deportation as Reichsverweisung into criminal law.

Reichsverweisungen 1875-1905 @ Christoph Rass, Praktiken der Exklusion, 2018

Was that a new idea in the 1870s? I was recently looking at Justus Möser, an Early Modern thinker of the German enlightenment from Osnabrück who published – among many other topics – on how to regulate migration in the late eighteenth century – an entire century earlier (Rass 2020).

Christoph Rass, Bewegung in einer kleinen Welt, 2020.

Möser argued that landowners constituted the state while all other inhabitants – to him, all immigrants of some sort – were only to be temporarily tolerated no matter how long they had lived in the territory. If they violated a norm or if they became a social burden, the community of landowners should be allowed to summarily sentence them to expulsion as criminals. His point was that this form of policing administered by the community of landowners and their courts would procure a well-disciplined labor force tailored to the needs of the elites. Justus Möser came up with a model migration policy that predated what would later be written into the criminal code of the German Empire and haunted us well into the post-1945 era. We could probably trace the underlying ideas even further back and find that merging migration control and criminal law is – in fact – deeply embedded in German, European or Western culture.

[3] A critical appraisal of crimmigration begins with this question: Why should we limit the study of mergers between different spheres of law in forming migration policies at the intersection of the criminal code and migration law? The control of migrants seems to be drawing input from almost every part of the ever-differentiating body of modern law, whether centralized in a body of foreigner law or decentralized across different branches.

For example, the production of unfree labor and discriminatory labor market positions of migrants makes use of the law across several fields. An obvious case is the links between labor law, migration law, and criminal law in Canadian temporary work programs during the 1980s, to name one prominent example (Rass 2014). As is often the case in temporary work programs, state-regulated controls of working conditions were suspended, the power to initiate deportation by reporting norm violations was handed to employers, and permanent residence became dependent on a migrant’s clean record and on the ability to stay with one employer for a minimum period. Understanding such systems requires turning from scrutinizing bilateral links – between migration law and criminal law or between migration law and labor law – to analyzing triple or multilateral mergers (Rass 2010).

This brief essay yields three observations:

[1] Using migration regimes as a historically informed analytical framework helps us to understand long-standing connections between criminal law and migration law produced by path dependencies. A growing distance between both of these areas of law should rather surprise us than their merger. Their relative position and the characteristics of their entangledness – as they change over time – are worth studying from a longitudinal and a comparative perspective.

[2] Tracing back ideas of how criminal law and its institutions and the policing of foreigners were conceptualized not only by practitioners, police officers, jurists, and lawmakers but also by intellectuals, philosophers, and academics can broaden our perspective on how crimmigration became culturally embedded and normalized.

[3] Connections between different areas of law in migration control go beyond crimmigration and become more critical as other sections of law differentiate and grow apart. The production of migration, migration control, and its place in the body of law – tending to disguise its sometimes highly discriminatory and abusive character – might strongly depend on such connections, which needs to be pointed out by critical and reflexive migration research.


References:

Cuauhtémoc García Hernández, César: What is Crimmigration Law?, in: Insights on Law and Society,  17. 2017, H. 3, 22 – 25.

De Koster,Margo/Herbert Reinke: Migration as Crime, Migration and Crime, in: Crime, History & Societies, 21. 2017, H. 2, S. 63 – 76.

Graebsch, Christine M.: Krimmigration. Die Verwobenheit strafrechtlicher mit migrationsrechtlicher Kontrolle unter besonderer Berücksichtigung des Pre-Crime-Rechts für „Gefährder“, in: Kriminologie. Das Online-Journal, 1. 2019, H. 1, S. 75 – 103.

Rass, Christoph: Institutionalisierungsprozesse auf einem internationalen Arbeitsmarkt. Bilaterale Wanderungsverträge in Europa zwischen 1919 und 1974 (Studien zur Historischen Migrationsforschung), Paderborn: Brill  2010.

Rass, Christoph: Unfreie Arbeit und globale Mobilität vom 19. ins 21. Jahrhundert, in: Arbeit und Recht seit 1800. Historisch und vergleichend, europäisch und global, Köln:  Vandenhoeck & Ruprecht 2014, S. 229 – 257.

Rass, Christoph: Praktiken der Exklusion. Die Reichsverweisung im Migrationsregime des Deutschen Kaiserreichs 1871/75-1914/18, in: IMIS-Beiträge, 52. 2018, S. 97 – 138.

Rass, Christoph: Bewegung in einer kleinen Welt. Justus Möser als Denker eines frühneuzeitlichen Migrationsregimes, in: Winzer, Ulrich/Tauss, Susanne (Hrsg.): Es hat also jede Sache ihren Gesichtspunct …’. Neue Blicke auf Justus Möser, Münster: Waxmann 2020, S. 85 – 100.

Rass, Christoph/Wolff, Frank: What Is in a Migration Regime? Genealogical Approach and Methodological Proposal Migrationsregime, in: Pott, Andreas/ Rass, Christoph/ Wolff, Frank (Hrsg.): What is a Migration Regime?, Wiesbaden: Springer 2018, S. 19 – 64.

Van der Woude, Maartje, Barker, Vanessa,  van der Leun, Joanne: Crimmigration in Europe, in: European Journal of Criminology, 14. 2017, H. 1, S. 3 – 6.

Walburg, Christian: „Crimmigration“. Die Ausweisung als Mittel der Migrations- und Kriminalitätskontrolle, in: Neue Kriminalpolitik, 28. 2016, H. 4, S. 378 – 88.

*This essay originates form a talk given at the conference: CRIMMIGRATION. ON THE MERGER OF CRIME CONTROL AND MIGRATION CONTROL @ ZIF, February 2021