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How the Current ‘Migration Crisis’ Challenges European Criminologists
Criminologists are used to the topics they study being high on political agendas. They know that such issues can rise to exceptional heights in response to particular events, as well as how these are presented in traditional and new media. This article looks into how fears over and responses to migration to Europe express themselves in (at least) seven distinct ways that criminologists should be paying attention to; (1) the relationship between decisions to migrate and migration policies, (2) how media accounts for and civil society impact on policy development, (3) the role of migration brokers, agencies and human smugglers in the migration process, (4) the link between increase and diversification of migration, smuggling of immigrants and human trafficking, (5) how fears and debates over migration links to crimes committed by or against immigrants, (6) the relationship between immigration to a country and the levels and forms of crimes they experience, and (7) the perceptions of societies towards newly-arrived foreigners (immigrants or asylum seekers).
It is important to first approach definitional issues. People arriving in Europe are often referred to as migrants or refugees. The difference between these two designations is important in both practical and symbolic terms, but while in transit and upon arrival, people who are leaving their home countries because of lack of freedom and poverty are indistinguishable from people who are fleeing a form and level of persecution which makes them eligible for asylum. The end result of an asylum procedure (or an international protection requirement) does also not rule out that rejected asylum seekers submitted a just claim for protection. We thus warn not to pit one category against another, posing one as deserving and the other non-deserving. The right to apply for asylum and have one’s need for protection evaluated is individual, and thus we cannot determine whether someone is a ‘mere’ economic migrant or a refugee deserving asylum simply from their country of origin (Carling 2015). Bearing this complexity in mind, it is still important to stress that divisions between economic immigrants, refugees/international protection seekers, or trafficked persons (to name a few categories) matters and must retain its relevance to criminologists, as each of these concepts points to different legislation and sets of rights and obligations.
Being or being treated as an economic migrant to Europe is a harsh predicament for third country nationals. While there have been several attempts to award residency also to migrants who are not eligible for asylum through processes of mass regularisation over the last 50 years1 (Kraler, 2009), in the last few years the European Union has taken steps to narrow the possibility to stay for migrants who are not experts and are not deemed in need of protection parallel to a strengthening a policy of return and deportations with Directive 2008/115/UE2. This Directive states the aim of returning migrants that for different reasons do not have the right to stayin Europe, being obliged to go back to their home countries or the last country they resided in before arriving in Europe at the same time as it establishes the possibility of detaining immigrants awaiting removal from the European Union Member States. The maximum recommended time limit of 6 months3, with a possible extension up to 18 months in exceptional conditions4. Over this same period, the USA has also moved from an expansion of the rights of migrants in the 1980s to the representation of immigrants as a threat. Stumpf (2006: 382) has linked this to the high number of arrival of asylum seekers from South-East Asia to the USA (Stumpf, 2006: 382), something which was understood as economic migration and an attempt to exploit the US’s social security system. Immigrants/non-nationals were accused of contributing to the rise in crime, and immigration policies came to be seen as a tool to control this, a part of the process we often refer to as ‘crimmigration’ (Stumpf 2006). The coming together of criminal and migration law and the emergence of the image of the criminal stranger, took part in limiting rights and protections offered to migrants and opened up space for repressive measures, such as prolonged detention for new migration-related crimes (Stumpf, 2006: 381-384).
While recent developments in terms of high numbers of arrivals and rapidly changing migration policies in various European countries are attracting much attention, managing migration as a possible threat has been on the European agenda for a longer period. These developments point towards both diversification and harmonisation. Directive 2013/32/UE established a differentiation between migrants, and this differentiation is central to how rights are awarded to migrants today (after the designations and decisions of Directive 2005/85/CE, 2011/95/UE and 2013/33/UE5) and is a part of the attempt to establish a common policy on asylum decisions (of which the common European Asylum System – CEAS – is a good example). The last year has seen a shift in how European states values protection of its outer borders, as Europeans realised that arrivals to especially Greece affect us all. The high number of arrivals poses practical challenges due to difficulties in managing the processing of asylum claims, and the question of how to respond to the perceived ‘migration crisis’ or ‘refugee crisis’ raises humanitarian concerns. Still,curbing migration continues to be on the top of the agenda. While being able to travel to a safe country to seek refuge is a right stated in the Refugee Convention of 1951, this is made difficult by several actions taken on the European and national levels. At the same time, exceptions are established in many European countries, in reality reinstating the inner Schengen-borders. This temporarily puts the aim of securing human mobility as a central trait of the European project on hold. The European project has, of course, always necessitated the balancing of national and European concerns. While foreign relations, aid and military protection have mainly been the responsibility of the nation states and their bi- and multi-lateral agreements, mobility and migration policies have, in the last two decades, been increasingly harmonized. The Schengen Agreement opened up intra-European borders while strengthening border control to the EU’s non-European neighbours.
People smugglers are central to the increase of arrivals to Europe and the attention it attracts. The organisation of and profit from unauthorised passage into Europe stand out as important reasons for the current situation, that both Europe, through FRONTEX - the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, and NATO are involved in attempts to police the Mediterranean and detect and stop people smuggling. While European states are dealing with arrivals, removals of irregular migrants who arrived after the implementation of Directive 2008/115/UE is becoming a central mechanism for European ‘migration management’. In the years to come, many of the migrants that have arrived in the last year will be turned into deportable overstayers, after having received a rejection on their asylum claims. Those who get to stay will be subject to integration policies aimed at preventing marginalization, crime and victimhood.
While European heads of state are currently concerned with getting the message across to prospective migrants that the opportunities to stay and prosper in Europe are scarce, unrest, human rights violations, poverty, inequality and downright war continues to be a reality in Europe’s neighbourhoods. This indicates that continued high numbers of arrivals is something Europe needs to be prepared for. Globalisation processes create both opportunities and desires for a better life, and criminal networks both create and exploit such opportunities and desires (Guia, 2008; 2015). The trafficking of persons has been a priority on the EU agenda and Directive 2011/36/UE was an attempt to establish a harmonised approach in the EU27 (at the time). There are many possible research agendas to be strengthened and established in the wake of the current situation that cover a number of issues, such as a state’s ability to regulate migration, migrants access to rights, and citizens sense of security and alignment with ‘the European project’. Criminologists are perfectly positioned to make a difference in such a situation and we want to stress that the following issues should be particularly relevant to criminologists:
- The relationship between decisions to migrate and migration policies. This is a highly relevant topic to criminologists in itself and to criminological theorising by how it is compable to the relationship between crime and punishment and because it involves marginalised others and their responses to attempts to steer and punish their actions. The question of deterrence is currently of central concern to European governments, and criminology’s established empirical and theoretical contributions can offer much to understanding how ‘migration management’ is imagined and executed.
- Criminologists can contribute to our understanding of the role of media in producing a sense of urgency and how that links to policy development. How media represents migration and migration control thus constitutes a comparative case for studying the relationship between popular and media representations of crime and the development of criminal justice.
- The role of migration brokers, agencies and human smugglers in driving the current situation is an area criminologists are exploring and where they should diversify their study. Human smugglers are currently topical in public debates throughout Europe, framed as organised crime, and the UN smuggling protocol is indeed attached to the United Nations Convention against Transnational Organized Crime. It is, though, necessary to understand that human smuggling and human trafficking is not the same. While smuggling is a crime against a state border, trafficking is a crime against a person and an act of exploitation. Migration research often points to how human smuggling is a humanitarian necessity in the sense that it offers the possibility to travel and cross state borders for people fleeing persecution (Crépeau 2003; Bhabha 2002; FRA, 2014:2). As the market for migration facilitators in the last years has increased, questions that arise are, among others, whether this is a demand or supply driven market, levels of exploitation, links to corruption, and policing of smuggling.
- The link between the increase and diversification of migration and the scope and expressions of human trafficking is of central importance in the current ‘migration crisis’. The chaos that is reported in the asylum reception systems in many countries may create possibilities for people to exploit the vulnerability of all or particular groups of migrants. Paying attention to the situation also entails investigating levels and the content of exploitation of migrants in transit and on arrival, for example in the form of human trafficking. Related to this is how the real and imagined dangers for migrants have created a sense of urgency in actions taken to prevent and end this exploitation. Criminologists need to think about how fears over exploitation of migrants serve as a lever for more strict immigration controls and a more punitive approach to involvement in the migration, labour or prostitution of others.
- In recent years, more and more countries have introduced hate crime legislation to better target, for example, violence committed on the basis of someone’s ethnicity and race. Criminologists should pay attention to whether hate crimes towards migrants is related to how migration is problematised in contemporary Europe. A hostile debate climate may curb necessary discussions about migration, gender and victimisation by both hate crimes and other targeted crimes.
- The relationship between migration and crime is also a topic for criminologists, as one of central European debates revolve arounds crimes committed by migrants, both in terms of levels and forms. An increase in numbers of immigrants is feared to hinder integration. One side to this, which is particularly relevant to criminologists, is the fear that this creates ‘parallel societies’ that, among other things, expresses themselves through the development of zones where it is feared that law and order no longer applies. At the same time, crimes committed by migrants also attract attention and impact debates on how generous Europe should be in welcoming asylum seekers. For example, the incidents that took place on Cologne on New Year’s Eve, and, not least, the question of whether police there and other places intentionally have been undercommunicating the level of crime committed by migrants from their populations, have particularly highlighted the link between migration and crime. As a result of this, media commentaries raised the question of how crime statistics should be registered.
- The integration and discrimination of immigrants or asylum seekers is relevant to criminologists for how it impacts social cohesion and equality, which are founding principles of ‘the European project’. Perceived conflicts between international obligations and precarity among citizens in the wake of neoliberal restructuring, and economic recession may create schisms in European populations that may haunt our continent for a long time.
These are some of the challenges that we encourage our fellow criminologists to take on, and we believe that such studies can both make criminology visibly useful for the development of just and functional societies and contribute towards a rich and interesting discipline. At the same time, these are demanding times for criminologists. The current climate often leads to debates that are resistant to evidence-based intervention. European and national cohesion and sovereignty is perceived to be under threat, and this can be seen in the fact that politicians, who do not normally see eye to eye on issues to do with social and criminal justice, are coming together to forge new and harsher migration policies.
Maria João Guia is Associate Researcher at the Center of Human Rights, Faculty of Law, University of Coimbra, Coimbra, Portugal
May-Len Skibrei is Professor atthe Department of Criminology and the Sociology of Law, Faculty of Law, University of Oslo, Oslo, Norway
1 In effect, between 1973 and 2008, 68 regularisation programmes were conducted in member states and 4.3 million regularisations were granted (Kraler, 2009:20).
2 Known as the Return Directive.
3 “Article 15(5): “[...] Each Member State shall set a limited period of detention, which may not exceed six months.” Directive 115/2008/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals.
4 “Under certain conditions, Article 15 of the Return Directive allows the detention of third-country nationals for up to six months, which can exceptionally be extended up to 18 months, to carry out the removal process” (FRA, 2014:3).
5 Both Directives 2013/32/UE and 2013/33/UE are from the 26th June 2013.
Bhabha, J (2002) Internationalist Gatekeepers: The Tension between Asylum Advocacy and Human Rights. Harvard Human Rights Journal 15: 155-182.
Carling, J (2015) Refugees are Also Migrants. And All Migrants Matter. Available at: http://bordercriminologies.law.ox.ac.uk/refugees-are-also-migrants/ (Accessed 14.04.2016).
Crépeau, F (2003) The Fight Against Migrant Smuggling: Migration Containment Over Refugee Protection. In: J van Selm, K Kamanga, J Morrison, A Nadig, S Spoljar-Vrzina and L van Willigen (eds.), The Refugee Convention at Fifty. A View from Forced Migration Studies. Lanham: Lexington Books.
European Union Agency for Fundamental Rights (FRA) (2014) Criminalisation of Migrants in an Irregular Situation and of Persons Engaging with them. Luxembourg: Publications Office.
Guia, MJ (2008) Imigração e Criminalidade – Caleidoscópio de Imigrantes Reclusos. Coimbra: Almedina.
Guia, MJ (2015) Immigration, ‘Crimmigration’ and Violent Crimes. The Convicted Inmates and the Representations of Immigration and Crime. PhD Thesis University of Coimbra.
Kraler, A (2009) Regularisation: A Misguided Option or Part and Parcel of a Comprehensive Policy Response to Irregular Migration? IMISCOE Working Paper.
Stumpf, J (2006) The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power. American University Law Review 56:367-419.