Leiden Law Blog

Privatising a migrant’s exclusion: the commodification of crimmigration

Privatising a migrant’s exclusion: the commodification of crimmigration

Crimmigration – the idea that crime control and migration control are progressively intertwined – has increasingly received scholarly attention after the introduction of the term in 2006. In an extensive body of literature, it has indeed become clear that criminal law and criminal justice are more and more employed to regulate and curtail migration. The most extreme example of such developments is the criminalisation of irregular entry or stay, which has previously been discussed on the Leiden Law Blog by Professor Van der Leun. Conversely, and somewhat less focussed upon, immigration-related rationales of inclusion and exclusion are increasingly used in the system of crime control. The system of criminal law thus does not merely or predominantly focus on rehabilitation, retribution or deterrence, but importantly also on the exclusion of ‘dangerous’ or ‘risky’ populations from society. Both criminal law and migration law (as well as the discourse related to them) to a large extent indeed focus on the question who should be allowed to enter society and who, on the basis of being presumed dangerous or undesirable, should not be.

The development of crimmigration seems to revolve mainly around two types of actors: the State, embodying and protecting society, and the individual, who is to be included or excluded. A third type of actor playing a major role in this field is, however, often overlooked – and unjustifiably so. Indeed, private corporations are key stakeholders in the crimmigration trend, yet their role and influence is more often than not overlooked in academic literature, popular media and the political debate.

Focussing on the process of migration management, this blog provides a brief overview of some of the private involvement in crimmigration – from detection to detention and expulsion. It puts forward that corporate actors are a force to be reckoned with and that their position, interests and influence should not be overlooked in future conceptualisations of the crimmigration process.

Before the border: carrier sanctions

Even before a migrant reaches the sovereign territory of the destination country, he or she is already subject to control and exclusion. Through legislation and regulation, countries have adopted so-called ‘carrier sanction legislation’, which obliges private companies carrying passengers, predominantly airlines, to check that aliens have the required travel documents for entry and to return them and pay a penalty if they do not. Private airline companies are thus given a significant responsibility – and obligation – to ensure that certain groups of migrants do not reach the territory of a State and thus remain excluded from its society. They provide, so to speak, the first filtering mechanism of the crimmigration process.

At the border: private border guards

If a migrant reaches the sovereign territorial border of a State, he or she can also encounter private actors performing immigration and security checks. Indeed, various States – including the UK and the US – have contracted private companies to carry out such checks and/or to build border surveillance systems. Some countries have even outsourced complete ports and airports to private contractors, whilst Israel has had a privatised border control at the major crossing point with the West Bank since 2005. Although the border is no longer the only side of immigration control, it hence remains an important zone of filtering and exclusion.

In the border: private processing and detention facilities

Migrants claiming asylum are often transferred to (onshore or offshore) processing facilities that are increasingly run by private contractors. In the UK, US and Australia, among other countries, such privately-run facilities have become common practice in contemporary migration control. These arrangements are dominated by a few multinationals that run private immigration processing facilities as well as private prisons across the globe: this includes in particular G4S, SERCO, GEO Group and CCA. Also in the detention of migrants – for example because they were not granted asylum, violated their visa conditions and/or committed a crime and should consequently be expulsed – private actors are contracted to run the facilities. As Doty & Wheatley outline it, “(in) this complex, private power and state power come together, mutually reinforce one another and expand the realms of authority to which people are subjected.”

From the border: private expulsion

The deportation of undesirable non-citizens – and therewith their physical exclusion from society – is also increasingly delegated to private security firms. As Khosravi puts it in relation to Sweden, “[t]oday, the removal operation is an enterprise involving transport companies, private security companies, five detention centres, deportation escorts, international networking (asylum attachés) and private expert companies”. Performing expulsions has indeed become a regular part of the business of private companies in the field of security and migration.

Conclusion: Crimmigration & Commodigration

Migration control is no longer within the exclusive purview of the State. Private contractors are significantly involved in the entire system of migration management, from the moment when a prospective migrant attempts to reach the territory of a State up until the point where the migrant is repatriated to where he or she came from. Whilst reasons of cost-effectiveness may urge us to seriously consider the benefits of such modalities, there are also serious downsides associated with this privatisation trend.

According to some, the prime rationale of private companies – i.e. to make money – threatens the legal integrity of the migration system. It would constitute an incentive for private airliners to exclude extensively in order to preclude fines and, simultaneously, an incentive for private security firms to get as much migrants as possible in the system to increase the number of requests to be processed, detainees to be detained, and undesired migrants to be repatriated. In addition, the private actors involved often operate below the public radar and without much scrutiny, thereby leaving the exercise of power neither very transparent nor accountable. The fact that a few multinationals run a large part of the migration management industry begs the question whether authority should be delegated in such an unaccountable way to such powerful institutions.

Whilst the dichotomous understanding of migration as involving a State and an individual might be conceptually and legally understandable, it leaves us with a limited understanding of the real migration playing field – where private corporations are gaining importance, interests and influence. Migration management is thus not only affected by ongoing criminalisation: it is also affected by an ongoing commodification. Analogous to the notion of ‘crimmigration’, this ‘commodigration’ should gain a more prominent position in our conceptual thinking about migration and the effects of contemporary migration control mechanisms on issues of, and accountability for, international protection, human rights and the rule of law. With their international allure and influence on the way in which migration management is shaped and run, these private actors are indeed a force to be reckoned with in the course of the crimmigration process: given their prominence, they cannot be overlooked.

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