In recent years, European governments have introduced a series of measures aimed at clamping down on foreign nationals within criminal justice systems. Such measures have included policies of automatic deportation on completion of prison sentences of a certain length, harsher sentencing, prison segregation, and restrictions on access to citizenship and rights to permanent settlement. This article argues that such measures constitute a separate criminal justice system for foreign nationals, the creation of which has been driven by ‘penal populism and racist campaigns by extreme-Right political parties, against Muslims, asylum seekers and Roma in particular. Many of those designated as foreign criminals are guilty only of new offences specifically created to criminalise undocumented migration; many others are young refugees who have never been helped to deal with the trauma they experienced in their countries of origin. Historically, the European Court of Human Rights has set a high threshold for the deportation of a foreign national following a conviction, particularly with regard to young people. But this has been bypassed by European governments, even in cases of‘virtual nationals , those born and brought up in a European country but, owing to jus sanguinis citizenship laws in some EU countries, holding a non-EU passport. Moreover, there are attempts to curtail the freedom of movement rights of EU citizens, such as Romanian Roma, on the grounds that they are a serious threat to public order.
Susanne Krasmann ,‘The enemy on the border: critique of a programme in favour of a preventive state , Punishment & Society (Vol. 9, no. 301, 2007).
2.
Boultif v Switzerland (2001) 33 European Human Rights Reports (EHRR) 50.
3.
Uner v Netherlands (2006) ECHR 46410/99. As these quotes show, the primary relationship protected by the Court is that of spouses or civil partners and their children. But once children reach adulthood, their relationship with their parents and siblings is not deemed so worthy of protection and will ‘only exceptionally prevent deportation. (Advic v UK (1995) 20 EHRR CD 125.) Thus a juvenile offender might be protected by his family ties from deportation at sixteen or seventeen but not at eighteen or twenty, unless he can show exceptional physical or emotional dependence.
4.
Judge Marcuillo in Nasri v France (1995) 21 EHRR 458.
5.
Ibid. This was, however, a minority view and neither governments nor judges, whether national or in the European Court, are prepared to attribute any responsibility at all for a young person s criminality to the host state where he was educated and socialised.
6.
Recommendation (2005) 15 CMCE, Council of Europe Committee of Ministers .
7.
The judges do not accept that‘virtual nationals should be equated with nationals for purposes of protection from deportation. The Court has held that deportation of foreign nationals is not necessarily unlawful even for those who have spent most of their childhood in the host country, if their offences are sufficiently serious.
8.
See Loic Wacquant , ‘Suitable enemies: foreigners and immigrants in the prisons of Europe , Punishment & Society (Vol. 1, no. 2, 1999), p. 215.
9.
De Fabel van de illegaal (No. 75, March/April 2006).
10.
Uner v Netherlands, op. cit. Mr Uner came to the Netherlands from Turkey at the age of 12 to join his father. In his early twenties he was convicted of three violent offences culminating in manslaughter, for which he was sentenced to seven years imprisonment. He was deported at the end of his sentence despite reports indicating that he was fully rehabilitated. He had a Dutch partner and two Dutch children, no longer spoke Turkish and had no connections there apart from an uncle. Psychiatric evidence showed that separation from his children caused depression.
11.
According to the French penal code, interdiction from French territory is an order which may be imposed by a judge in a criminal court or correctional tribunal in addition to the main penalty (imprisonment or a fine), if the defendant is a foreign national.
12.
The law of 26 November 2003 provided that if someone is convicted of a crime and had entered France before the age of thirteen, or had lived in France for twenty years, or had lived in France for ten years and was married to a French person for three years, or is the parent of a French child, he or she should not normally be subjected to a banning order.
13.
We are indebted to Susanne Krasmann for drawing our attention to Jakobs work. See Krasmann, ‘The enemy on the border , op. cit., for an outline of Jakobs ideas.
14.
For a full outline of the Hesse campaign, see European Race Bulletin (No. 63, Spring 2008).
15.
See Deutsche Welle (7 January 2008).
16.
See Deutsche Welle (9 January 2008).
17.
See Expatica News (28 August 2009).
18.
Courts were also required to consider possible impediments to the enforcement of a deportation order, such as the individual being at risk of the death penalty, corporal punishment, torture or persecution if he or she was deported, and to consult with the Swedish Migration Board on such impediments.
19.
We are grateful to Lisa Westfelt for allowing us to see the English-language summary of her PhD dissertation. See Lisa Westfelt, ‘Migration som straff? Utvisning på grunder brott 1973- 2003 med focus påflyktingskyd’.
20.
‘Immigration and asylum statistics released , Home Office press release, 24 February 2009.
21.
‘A quick fix that fans the flames of intolerance , Independent (4 May 2006).
22.
As in Sweden, foreign nationals subjected to a deportation order having served a prison sentence can challenge automatic deportation on human rights grounds. But if the courts state they cannot be removed from the UK, they will fall under the provisions of the Criminal Justice and Immigration Act.
23.
Critics point out that the law as drafted could also apply to those served with fines as an alternative to a prison sentence. Since 1 January 2007, in the cases of certain offences, a person given a prison sentence of less than one year may have this penalty converted to daily fines but the Aliens Bill states that those who accept this form of punishment are also liable to expulsion if the total amount of daily fines is equivalent to more than a two-year prison sentence within a ten-year period.
24.
GISTI, LDH, MRAP, CIMADE and ANVP (National Association of Visitors to Prison), Livre noir de la double peine (March 2006).
25.
Chekib, another victim of double punishment cited in the report, was only two when he came to France from Tunisia. His parents and three siblings are French citizens. He was expelled in 2002, aged twenty-five, to Tunisia, where he had no family or ties, did not speak the language and was totally isolated. He was diagnosed with clinical depression in 2004, caused in large part by his extremely difficult living conditions. Following the 2003 legal reforms, he applied to return to France but was refused on the grounds that he could not prove he was ‘habitually resident in France immediately before 30 April 2003 - which he could not do because he had obeyed the expulsion order and not sought to re-enter France illegally. Following legal action, the expulsion commission approved abrogation of the expulsion measure but the interior ministry had done nothing to enable him to return to France by the date of publication of the dossier.
26.
GISTI, L’interdiction du territoire français: la double peine judiciaire (December 2008).
27.
Weiner Zeitung (28 January 2008).
28.
Jonathan Simon, Governing Through Crime: how the war on crime transformed American democracy and created a culture of fear (Oxford, Oxford University Press, 2007).
29.
For a full report on the Italian general election and its aftermath, see European Race Bulletin (No. 64, Summer 2008).
30.
Gazetta Ufficiale (No. 170, 24 July 2009). Our thanks to Sara Cerretelli at Cooperazione per lo Sviluppo dei Paesi Emergenti (COPSE) for helping us to understand the complexities of the law.
31.
See <http://www.everyonegroup.com>.
32.
Earning the Right to Stay: a new points test for citizenship (UK Border Agency, 2009). See ‘Subject to British values , IRR News (10 September 2009).
33.
See Guardian (31 May 2006).
34.
Report of 15th conference of directors of prison administration, ‘Overcrowded prisons: looking for solutions , 9-11 September 2009, CDAP(2009)04.
35.
‘Italy: police and judiciary persecution is taking place towards foreigners and Roma people , statement by EveryOne, 5 May 2009.
36.
Ibid.
37.
See Migration News Sheet (August 2009).
38.
Simon, Governing Through Crime, op. cit.
39.
‘Service Level Agreement between the Ministry of Justice, the National Offenders Management Service (NOMS) and the UK Border Agency to support the effective management and speedy removal of foreign national prisoners , May 2009. Reported in ‘Segregating foreign national prisoners , IRR News (16 July 2009). A judicial review of this policy is ongoing.
40.
London Detainee Support Group, Detained lives (January 2009).
41.
Guardian (31 May 2006).
42.
‘The death of prisoner Baranovsky , Independent (11 October 2009).
43.
Her Majesty s Chief Inspector of Prisons, Foreign National Prisoners: a thematic review (3 November 2006).
44.
SOS Racismo, ‘Una nueva brigada policial que aumenta el apartheid jurídico (October 2008). See Statewatch (14 October 2008).
45.
The Spanish criminal code regards selling pirated films in the street a more serious crime than killing someone through minor negligence. Those convicted can find that judges replace a prison sentence with an expulsion order.
46.
Indymedia Estrecho,‘Rubalcaba propone la creación de una brigada policiaca especializada en la detención y expulsión de extranjeros (26 November 2008).
47.
See‘Control de la ilegales en Espana , 4 April 2009, <http://traselviaje.blogspot.com/2009/04/ control-de-los- ilegales-en-espana.html>.
48.
See UK Border Agency, ‘Enforcing the deal: our plans for enforcing the immigration laws in the United Kingdom s communities: business plan 2008-9’.
49.
Reuters (17 September 2009).
50.
KISA,‘Migrants detention and ill-treatment in Cyprus , <http://idc.rfbf.com.au/wp-content/ uploads/2009/06/kisa-memo_detention-ill-treatment_2505081.pdf>.
51.
Simon, Governing through Crime, op. cit.
52.
See Austrian Times (7 October 2008), Austrian Times (20 February 2009) and Austrian Times (21 October 2009).
53.
Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 2; R v Navabi, R v Embaye [2005] EWCA Crim 2865.
54.
‘Crusade against the undocumented , IRR News (5 February 2009).
55.
His successor intends to abrogate the measure, which violates the Refugee Convention. Migration News Sheet (October 2009).
56.
Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence [Official Journal L 328 of 5.12.2002].
57.
Reuters (17 September 2009).
58.
The background to events in Italy, as well as a full list of statements and petitions issued in defence of the Roma, can be found in European Race Bulletin (No. 64, Summer 2008).
59.
Directive 2004/38 EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states, Article 27(2), which states that: ‘The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.’
60.
In October 2009, in recognition of the specific vulnerability to deportation of a generation of migrant children born and raised in Greece, the newly-elected socialist government introduced a wide-ranging overhaul of immigration policies. It is anticipated that around 200,000 children who are Greek in everything but name will be granted papers and therefore protected from arrest and deportation at the age of eighteen. Guardian (22 October 2009).
61.
Deportations continue of young adults with criminal records who were born in Germany and have Turkish origin. However, monitoring of this phenomenon seems to be virtually non-existent and information about cases only emerges if they generate media interest. One such case was that of Erkan Taylay who was deported to Turkey in 2009 even though the authorities deemed him ‘completely rehabilitated by the time he had completed his prison sentence.
62.
Concerns have also been raised in Switzerland over how new aliens legislation will apply to the children and grandchildren of the original Turkish guest workers who were either born in Switzerland or who have lived most of their lives there. Whereas in the EU, lawfully resident Turkish nationals and their families benefit from some of the same protections as EU nationals, and can only be deported on the same grounds, these protections are of no avail in Switzerland, which is not a member of the EU.
63.
In the same way that the UK authorities sought to use immigration law to justify the internment of foreign ‘suspected international terrorists who could not be deported because of the risk of torture, while not seeking to intern British suspected terrorists- a stratagem condemned as unlawful and discriminatory by the House of Lords in December 2004 in A v Secretary of State for the Home Department [2004] UKHL 56.
64.
El Pais Basque edition (13 March 2009), Diario Vasco (14 March 2009).
65.
EN Serbia v Secretary of State for the Home Department [2009] EWCA Civ 630, 26 June 2009.
66.
Parliamentary Joint Committee on Human Rights, 22nd report of session 2003/4, ‘The Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 , HL 190/HC 1212.
67.
EN Serbia v Secretary of State for the Home Department, op. cit.
68.
Case files.
69.
Case files.
70.
Simon, Governing through Crime, op. cit.
71.
OcaN, ‘VIA. Making a difference between Dutch and Dutch , 30 September 2008, <http:// www.ocan.nl/Ocan- Nieuws/via-making-a-difference-between-dutch-and-dutch>.
72.
As cited by Jan Tas, ‘Government racism against Antillians , De Fabel van de Illegal (No. 69, Autumn 2006).
73.
‘Le premier emeutier victime de la double peine est malien , Afrik.com (3 February 2006), <http://www.afrik.com/article9415.html>.
