Joel Platt

January 28th, 2021

Is the Criminalisation of Migration Racist?

1 comment | 29 shares

Estimated reading time: 10 minutes

Joel Platt

January 28th, 2021

Is the Criminalisation of Migration Racist?

1 comment | 29 shares

Estimated reading time: 10 minutes

The death of four Iranian migrants – including two children aged just five and eight – in the English Channel in October 2020, offers a confined illustration of what has become a harrowingly common scene across European borders, but one that is met with an increasingly insouciant citizenry (Guardian, 2020a; Guardian, 2020b). Indeed, the systematic nature by which Europe has ostracised non-white, undocumented migrants and exposed those already fleeing war to further fatal risk, shows a chilling disregard for human dignity and fits comfortably within Gilmore’s definition of ‘racism’ as ‘the state sanctioned or extra-legal production and exploitation of group-differentiated vulnerability to premature death’ (2002: 261).

The study of postcolonial racism must address its foundational structural apparatus. Specifically, exclusion is facilitated by the nation-state paradigm at the crux of international law. The ‘inalienability’ of the Universal Declaration of Human Rights (UDHR) presents humanity itself as a source of law; however, within the international legal system, the nation-state recognises no superior authority. Thus, there remains no rights anterior to the political will of a distinct nation-state (Bentham, 1843). It is through the process of naturalisation that an individual obtains their humanity and rights, asserting ‘[w]e are not born equal, we become equal as members of a group on the strength of our decision to guarantee ourselves mutually equal rights’ (Arendt, 1949: 33).

Perhaps paradoxically amidst the forces of neoliberal globalisation, the modern nation-state is increasingly marked by borders attempting to distinguish those who belong and those who do not. Indeed, the intercourse between the global and the familiar has generated an insecurity of identity, diminishing both state sovereignty, and strained welfare resources (Pickering et al, 2014: 388). Such trepidation is projected onto the precarious figure of the ‘undocumented migrant’ who offers the ‘fullest and most tangible embodiment of ‘otherness’’ (Bauman, 2000: 108-9).

The ‘War on Terror’ has exacerbated this fear of outsiders through its central tenet of an ‘enemy within’. Ironically, the gruesome November Paris attacks in 2015 were perpetrated by (racialised minority) European citizens; yet, the insidious spectre of Europe’s ‘homegrown’, ‘Islamic terrorist’ is ‘routinely racialized as being ‘of migrant background’’ (de Genova, 2018: 1773), as crudely observable within mainstream media.

The concomitant resurgence of neo-nationalism across Europe (Bjorgo and White, 1993) has seen political leaders promise strong migration control. Amidst a growing disconnect between politicians and electorate, responding to (mis)conceptions of migration is one of the few jobs governments ‘can do and be seen doing’ (Bauman, 2000: 108-9).

Politicians utilise the ‘deviant immigrant’ construction to justify a repressive national-security (as opposed to human rights) centred approach to immigration. This has informed the development of ‘crimmigration law’ (Stumpf, 2006), a phrase that depicts the process of ‘making people illegal’ through the contemporary convergence of immigration law and the criminal justice system (Dauvergne, 2008). The two operate as ‘gatekeepers of membership’ within the nation-state (Stumpf, 2006). Such pre-emptive security necessarily encompasses identifying a ‘suspect’ community. Nationality is a significant distinguishing factor which ‘is tied up with visible difference and [thus] people of colour tend to be targets for surveillance and control’ (Bowling, 2020: 165). The economically and culturally (or, rather, racially) undesirable migrants generally hail from formerly colonised countries. They are posited as inherently unlike ‘us’, and thus undeserving of our solidarity or even the succour of our penal welfare system (Aas, 2007: 80). Their movement is illegalised and met with hard borders.

Take the example of the UK government who proudly note how all violations of immigration law now constitute criminal offences (Home Office, 2010: 26). Individuals from Africa, and most of Asia and South America, require visas to enter the EU. The vast majority of applicants, particularly the most vulnerable, cannot satisfy this threshold, and are thus forced to first arrive in Europe illegally before pursuing an asylum claim. Within the UK, entering without documents (previously an administrative violation) is now a strict liability offence and the most prosecuted immigration offence (Aliverti, 2012: 103). Consequently, ‘illegal’ foreign nationals occupy an expanding proportion of the UK’s prison population where, contrary to citizen inmates, imprisonment is not geared towards rehabilitation and reintegration into the social, but deportation (Kaufman, 2013).

Furthermore, ‘administrative’ responses to immigration offences progressively imitate criminal ones. Administrative detention facilities have been erected in great numbers across the Western world, constituting ‘heavily racialized sites of confinement, populated almost entirely by citizens from the global south’ (Bosworth et al, 2016: 221). Moreover, living conditions in many detention facilities are actually worse than prisons and, unsurprisingly, mental and physical health problems are rife amongst the incarcerated (Bosworth, 2012: 129). Such is compounded by the fact that the majority of detainees have not been criminally convicted but are being held (sometimes indefinitely) on the basis of security concerns, thus not meeting the constitutional protections enjoyed by citizens.

Such differential treatment is legitimised by democracy’s distinction between those deserving of the benefits of inclusion, a ‘citizen’, and those undeserving, a ‘non-citizen’. Classification is depersonalising; ‘non-citizens’ are viewed as dangerous due to arbitrary factors like race and nationality, divorced from their individuality and intrinsic human dignity (of which Western actors are paradoxically the greatest (rhetorical) champion thereof). Inevitably, innocent persons are labelled ‘risky’ and subjected to intrusive measures on account of possessing features of a ‘typical terrorist’ (Mythen and Walkate, 2006). Through this process of ‘dehumanisation’, the undocumented migrant’s morality is concealed, facilitating violence and exclusion.

This is at the heart of the callous lack of political succour. Note the contradictory attitudes towards the macabre spectacles of parents desperately acting in their family’s best interests fleeing the horrific violence of the Middle East (where Western foreign policy is embroiled) and the political sympathy for the Prime Minister’s old chum when he allegedly breaks COVID restrictions (Guardian, 2020c). Of these fleeing refugees, at least 3,700 drowned in 2015 alone (Anderson, 2017: 1527). Despite many looking to Europe for hope, the treacherous journey does not end once inside Europe’s borders. Amidst, those walking along Eastern Europe’s motorways was a European flag with the message ‘We share your respect for justice, freedom and human rights and here we are! We belong!’ (ibid: 1528). However, when outsiders invoke human rights, it draws many similarities to that of the discourse of societies for the prevention of animal cruelty, ‘[asserting a] belonging to the human race in the same way that an animal belongs to animal species [with the chilling possibility] that they might end by being considered beasts’ (Arendt, 1951: 297).

When one considers the magnitude of fatalities upon Europe’s shores; the indeterminate detention and public degradation of deportation; and the denial of access to a welfare system funded by the spoils of colonialism (Drayton, 2012: 162), it is easy to assume that undocumented migrants have their human rights violated. However, as with the plight of the stateless post-world war (Arendt 1949: 31), these individuals do not have their human rights violated; rather, they have no human rights because they are not considered human equals. Their exclusion from human political community reduces them to ‘bare life’ (Agamben, 1998), where ‘all that remains is their total subjection to sovereign power’ (Barker, 2013: 241).

It is thus the (re)discovery of our collective humanity, and the revitalisation of a morally engaged public space capable of challenging narratives of fear, which offers the true antidote to the contemporary ‘migrant crisis’. Yet, the task is tremendous, and optimism is deferred. Indeed, Europe’s exclusionary borders, through systematically blocking access and safe passage, expose almost entirely non-white migrants to fatal risk. In this, Gilmore’s definition of ‘racism’ become salient and damning.


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About the author

Joel Platt

Joel holds an LLB (First Class Honours) and LLM (Distinction) from Durham University, and is currently studying an MSc in Criminology and Criminal Justice at Oxford University. His research interests lie in international human rights law and political philosophy.

Posted In: Discrimination | Empire and Racism | Migration