Crime Law Soc Change

DOI 10.1007/s10611-014-9527-5

Struggles against subjection. Implications

of criminalization of migration for migrants’ everyday
lives in Europe

Agnieszka Kubal

# Springer Science+Business Media Dordrecht 2014

Abstract The criminalization of migration has, over the last decade, gained unprecedented
focus in migration, criminology and socio-legal literature. Recently, there have been some
developments critically revisiting the criminalization thesis, particularly with reference to
the European experiences: criminal law might exist ‘on the books’ but quite often it is not
actually enforced in immigration practice. Therefore, whilst the incorporation of criminal
law into the immigration domain serves mainly symbolic functions to demonstrate a
government’s firm grip over immigration control, it also legitimizes a discourse presenting
migrants as potential criminals, cheats and abusers. This begs the following question: how
do migrants respond to this increasing conflation between criminal and immigration
domains in the wider social context? How are the official and public discourses over
‘crimmigrant bodies’ reflected in migrants’ everyday life experiences? Do migrants
resist, reproduce or redefine this criminal labelling? I grapple with these questions while
qualitatively investigating the experiences of 270 return migrants from four European
countries (Norway, Netherlands, the UK and Portugal): migrants’ responses to the
stigmatizing force of symbolic criminalisation do not always mean resistance,
but, quite often, are placed on a continuum between the contestation and the
reproduction of the stigma and the hegemony of the law.

If men define situations as real, they are real in their consequences [55]

Introduction

It was a rainy Tuesday morning in Amsterdam in April 2012, hence Diego, a

28 year old Brazilian, decided not to cycle to work that day, but to use the public
transport instead. He was waiting at the bus stop, 6.30 am in the morning, and

A. Kubal (*)
British Academy Post-Doctoral Fellow, Centre for Socio-Legal Studies, University of Oxford, Manor
Road Building, Oxford OX1 3UQ, UK
e-mail: agnieszka.kubal@csls.ox.ac.uk
 A. Kubal

the bus was slightly late. Suddenly, instead of the bus, a group of dressed in
civilian clothes surrounded the bus stop and started asking for documents. They
immediately let go of the very few fair-skinned, Dutch-speaking people, and
concentrated on the majority waiting at the bus stop. Diego showed his work
pass to prove his identity. The officers asked of his nationality. When they heard
he was Brazilian, they requested to see his passport, proof of a right to stay and
work in the Netherlands. Diego, and many others, did not have their passports on
them. He was then ‘escorted’ from the bus stop back home in the immigration
officers’ car. There it became clear that Diego’s visa expired the previous
month. He already had a ticket to go back to Brazil (in June), but he wanted
to save up some more money and travel a little bit before returning. This did
not satisfy the immigration officers. Diego was handcuffed and taken to a
detention centre:

Then they arrested me and told me to pick up things that I found most important
and have led me out of the house. They needed to have proof that I am who I was
telling them I was. I was kept in a detention centre for immigrants, waiting for the
day to go back (Diego, 29, Brazil-NL).

Diego spent one week at the detention centre. He was flown back to Brazil first class
(sic!) at the expense of the Dutch tax payer, as the immigration officers considered it a
priority to deport him as soon as possible with obviously little regard for the cost, or the
fact that he already had a ticket to go back to Brazil.
One year later, in summer 2013, the public in the UK was inundated by the
UK Border Agency (UKBA) campaign directed at undocumented migrants in
London. Mobile billboard advertisements saying ‘In the UK illegally? Go home
or face arrest’ were being driven around London. 1 The text continued: ‘106
arrests last week in your area*.’ The asterisk was there to indicate that this was a
made-up figure, relating to no particular area, no particular week and no particular
reliable source of data [74]. The campaign was criticised by the migrant, human rights,
refugee and legal professional groups as fearful, stigmatizing and diminishing trust
within the communities. It also attracted criticisms from all sides of the political
spectrum, galvanised local campaigners and, in some cases, police officers and
politicians, against the campaign. At local level, the vans were reminiscent of the
National Front marches in the 1980’s which urged immigrants to ‘go back to
where they came from.’ And at political level, local councillors were outraged
that they had not been consulted before the vans were rolled out throughout their
boroughs, thus threatening to undo the hard work that had been carried out over
the years to foster good community relations [12].
However, the vast increase in the number of ad hoc but spectacular immigration
raids and their increasingly public character (checks conducted in public transport and
other spaces of public use such as cafes or universities) by immigration officers in
civilian clothing, targeting people based on their accent, race or the so-called “foreign”

1
See the picture in Appendix A.
Struggles against subjection

appearance, and applying measures openly borrowed from the domain of criminal
law – handcuffing suspects in front of the wide public as potential criminals,
arrests, detentions and deportations – have become an everyday life experience
for many documented and undocumented migrants in the UK and elsewhere in
Europe.
The concept of criminalization of migration has, over the last decade, gained
unprecedented focus in the migration, criminology and socio-legal literature and
analysis. It has been coined to capture this asymmetrical incorporation of criminal
justice norms into immigration legal proceedings, traditionally build upon civil regu-
lation [53]. In other words, many immigration laws have now become criminal
offences, criminal law is also increasingly employed in aid of enforcing immigration
law, but migrants charged with these offences are not afforded the same protection and
rights as suspects in criminal proceedings. This asymmetric incorporation has produced
a deportation regime [23, 25] so substantively harsh and inflexible that too often, the
penalties are cruelly disproportionate to the transgressions, and the borders between
security of residence and deportability increasingly porous.
Recently, however, there have been some developments critically revisiting the
criminalization thesis, particularly with reference to the European experiences.
Aliverti’s [3] important contribution, ‘Making people criminal?’, challenges and qual-
ifies the pervasiveness of criminalization. Investigating the British immigration system
from the institutional perspective, she posits that criminal law might exist ‘on the
books’ but quite often it is not actually enforced in immigration practice ([3]: 423),
deemed costly and ineffective. For example, section 8 of the Asylum and Immigration
Act 1996, which prohibits the employment of undocumented migrant workers, resulted
in, on average, only one prosecution a year between 1998 and 2004 ([51]: 174). But
there is at least yet another caveat to this debate worth investigating: although the
incorporation of criminal law into the immigration domain serves mainly symbolic
functions to demonstrate the government’s firm grip over immigration control, it
nevertheless, at least partially, legitimizes the discourse presenting migrants as potential
criminals, cheats and abusers [9, 38, 60]. This begs the following question: how do
migrants respond to this increasing conflation between criminal and immigration
domains? How are the official and public discourses over ‘crimmigrant bodies’ [1]
reflected in migrants’ everyday life experiences of immigration law enforcement? Do
migrants resist, reproduce or redefine this criminal labelling [58, 62, 73, 76] in their
daily practices?
The paper proceeds in three parts. In the following section, I advance the argument
on the symbolic consequences of criminalization of migration in the wider social
context, where, aside from the paragraphs, ordinances and enforcement practices, the
law receives a life ‘on its own.’ The criminalization of migration in the wider
social context, at the level of lived legal consciousness [29, 42] may be stripped
from the attributes of formal juridical power, courts, lawyers and the presumption of
innocence principle, but it nevertheless – or very much because of that – exercises a real
power over peoples’ lives. It embodies the power of subjection, which – drawing on
Foucault – objectifies and naturalizes a reality where ‘the mad [are divided] from the
sane, the sick from the healthy, the criminals from the good boys’ ([32]: 778).
The second part turns to the black letter law which legitimises these practices by
examining the changes in the immigration law domain in the four above-mentioned
 A. Kubal

European jurisdictions: the UK, Netherlands, Portugal and Norway. Although it is the
UK, which, as a common law country, has historically resorted to criminal law in order
to regulate social life [50], criminal law sanctions – the strongest form of condemnation
a society has to communicate censure – are now part of Norwegian Immigration Act
2008 (Utlendingsloven LOV 2008-05-15, with amendments), Dutch Aliens Act 2000
(Vreemdelingenwet 2000, with amendments and corresponding regulations) and
Portuguese immigration law (Lei nº23/2007 de 4 de Julho, with amendments). It is a
telling circumstance that in fact many (if not all) of the relevant criminalized traits in the
individual countries’ migration law are, in fact, implementations of, or in accordance
with, European Union (EU) principles on the matter (Regulation 562/2006 - Schengen
Borders Code and Directive 2008/115/EC – Repatriation Directive).
The third, empirical, part discusses the lived experiences of criminalization.
Following from Foucault’s conviction that power relations, ‘the different modes by
which human beings are made subjects’ ([34]:326), are most interesting to investigate
at the sites of resistance – at the extremities of the social body, at those points where
power becomes ‘capillary’ ([35]: 27) – I give voice to those whose lives are shaped by
the law, relying on 270 interviews with return migrants to Morocco, Brazil, and
Ukraine, and their family members, many of whom were undocumented, some
deported. Their responses to the stigmatizing force of symbolic criminalisation do
not always mean resistance [18], but quite often are placed on a continuum between
the contestation and the reproduction of the stigma and the hegemony of the law,
furthering the marginalization of the most vulnerable groups of people. Discussing the
everyday-life resistance to criminalization, I bring to light the practices of questioning
and redefining legal status, but also – the most ambivalent form of struggle against
subjecting power of the law: the return – as a form of collective agency and collective
dissent [42].

Criminalisation of migration – the subjecting power in the wider social context

As derived from classic criminology, criminalization refers to increased reliance on

criminal law for regulatory, administrative and instrumental purposes [51]. With regard
to criminalisation of migration, the issue revolves around the merger of criminal law
and administrative law in the area of borders, immigration and asylum. Stumpf [70]
coined a concept of ‘crimmigration crisis’ to capture that – especially in the United
States – ‘immigration violations previously handled as civil matters are increasingly
addressed as criminal offences’ ([70]: 12). More specifically, Legomsky [53] revealed
the very mechanisms through which the asymmetric incorporation of criminal law into
the immigration domain takes place. He distinguished ‘five points of entry’ in
importing the criminal enforcement model to the immigration domain; these
include: 1) attaching criminal consequences to immigration violations, 2) attaching
immigration consequences (e.g. deportation) to criminal convictions, 3) prioritizing
criminal enforcement in immigration law, 4) importing strategies of criminal law
enforcement in immigration proceedings, such as preventive detention and plea-
bargaining, 5) using state and local criminal enforcement officials as well as federal
sentencing judges (specific to US jurisdiction) to pursue and adjudicate immigration
offences ([53]: 680). This, Legomsky argues, happens without a sense of proportion; in
Struggles against subjection

other words, defendants in criminalized immigration proceedings are often denied the
rights otherwise available to suspects in criminal law. Criminalisation of migration also
came to denote – more empirically – the increasing number of imprisoned foreign
nationals [9], as well as the symbolic appeal to criminal law in the proverbial (though
politically charged) ‘fight against illegal immigration’ in domestic policy [10], securi-
tization of immigration [1], through to the everyday life practices of internal controls
beyond the physical border [52], where the criminal immigration offences are ‘merely
additional tolls to facilitate the everyday work of enforcement officers’ ([3]: 421).
Criminalization of migration has also been present in the vast literature on the forced
removal back to the ‘country of origin’ [25, 26, 59].
To heuristically organize these many conceptualizations of criminalization of mi-
gration in order to examine their consequences for (undocumented) migrants’ everyday
lives in the European context, I have grouped them under two ‘ideal-types’ headings:
criminalization ‘on the books’, and criminalization ‘in practice’. The former denotes the
academic analyses of the actual changes in the immigration law texts as a result of
introducing criminal offences in immigration legislation (cf. criminalization as an
outcome, [51]: 161). The latter, as established in the literature, consists of two-
interrelated phenomena; first – the use of criminal law derived strategies for immigra-
tion law enforcement (or use of administrative sanctions that mimic criminal ones, e.g.
detention), and second – attaching immigration consequences (e.g. deportation) to
relatively minor crimes committed by migrants [13, 38, 41, 53, 61, 72]. I argue
however that this is an insufficient lens to fully observe the consequences of
criminalization for migrants’ everyday lives in Europe.
With this paper I propose to expand the conceptualization of criminalization to
include the dimension of often (un)intended symbolic and stigmatizing consequences
of deeming certain acts as criminal in law, which could be empirically observable at the
level of legal consciousness – the quotidian values, attitudes, narratives, interpretations
and understandings concerning the social perceptions of crime and criminality [29, 42,
46, 49, 56]. Legal words and practices are constructs which carry powerful meanings
not just to those trained in the law but also to the ordinary, lay people as well
([54]: 8–9). Thinking about criminalization in the wider social context, at the level of
legal consciousness cuts across the distinction between legal and social constructions of
crime, as both acts and practices are shaped by law and broader social dynamics.
Looking empirically at migrants’ values and attitudes toward the changes in immigra-
tion laws, the often taken-for-granted and non-immediately-noticeable assumptions
which structure and inform everyday thoughts and actions, I draw on the classic
conceptualization of legal consciousness by Patricia Ewick and Susan Silbey [29].
They define it as ‘the meanings, sources of authority and cultural practices that are
commonly recognised as legal, regardless of who employs them and for what ends’
([29]: 22). I also rely on more recent theoretical developments proposed by Halliday and
Morgan [42], who fill an important gap in the ‘law and society’ literature by bringing to
the forefront the relative neglect of collective dissent and collective agency in previous
accounts of legal consciousness [19, 29, 49, 56].
The conceptualization of criminalization of migration in the wider social context is
an important theoretical contribution of this paper. The criminology and migration
scholarships demonstrate convincingly that the expansion of the boundaries of criminal
law to include certain immigration offences (substantive shift in criminalization ‘on the
 A. Kubal

books’) may not necessarily lead to an increase in criminalization-related enforcement

practices (‘in action’) unless certain other conditions – an increase in resources
available to enforcement agencies, or a change in their incentives – are met [1, 3, 8,
38, 60]. And yet, while the law ‘on the books’ might be voided from actual enforce-
ment, it nonetheless has profound social and material consequences for many migrants
and European citizens. Once the message of criminalization of certain traits of immi-
gration law reaches the public discourse, it gains a life ‘of its own’ with factors such as
penal politics, media coverage, and the extensive discretion exercised by criminal
justice and immigration officials having a powerful impact on blurring the boundaries
between undocumented migrant, asylum seeker and the ‘criminal’ [14, 51]. This
facilitates what Jonathan Simon [67] calls ‘governing through crime’ as different social
institutions adopt the policies and metaphors of criminalization and where, in the
process, the very rationale of governance shifts from distributive justice to the contain-
ment of perceived ‘danger’ [11, 68]. It serves as an exemplary form of symbolic law
[27], where policies primarily serve the purpose of placating the public allegedly
concerned with undocumented immigration: sending a loud and clear political message
that an action is being taken. Indeed, the interviews with return migrants, discussed in
the following part of this paper, demonstrate that they construe their experiences of
criminalization with relation to a wide range of factors, actors and processes. Migrants’
experiences reveal how the boundaries between law-creation, interpretation, and en-
forcement are notoriously fluid, with the reporting decisions of ordinary citizens (and
non-citizens) influencing how official practices of criminalization are invoked, acted
upon and reproduced.
Therefore criminalization of migration is not just a matter of ‘a politically charged
set of decisions that result in a complex set of individual laws by which the state seeks
to govern its subjects’ ([6, 8, 13]: 44) or the enforcement of these laws, but also how
these interact with the broader features of the socio-legal environment, empirically
observable at the level of social tissue, discourse and everyday life experiences [19, 28,
42, 46, 48]. The categories of criminal offence are contingent upon time and place,
prevailing social mores, cultural sensibilities, discourses, narratives, dominant interpre-
tations, religious and moral precepts. This relationship between legal constructions of
crime and social constructions of crime and criminality is an unsettled one, where the
peculiar illusion that acts of conduct were divided originally into positive/negative,
criminal/virtuous is complicated by ‘social norms that we know as subtle, continuous,
and negotiable’ ([15]:257).
How does one approach and research migrants’ responses to elusive and subtle
mechanisms of criminalization in this wider social context? Interrogating migrants’
experiences of immigration law, I draw on Foucault’s conceptualization of the modes of
subjection, which transform human beings into subjects, as articulated in his 1975-6
lecture course Society Must Be Defended. As Foucault puts it, modernity saw ‘the
appearance – one should say the invention – of a new mechanism of power which had
very specific procedures, completely new instruments and very different equipment. It
was, I believe, absolutely incompatible with relations of sovereignty’ ([35]: 35).
Criminalization, when understood in the wider social context, at the level of lived legal
consciousness is a form of exercise of power, a mode of subjection which divides – or
naturalizes the division of – the rational, law-abiding, and normal subjects – from the
mad, the criminal and the deviant. It is a ‘form of power that applies itself to immediate
Struggles against subjection

everyday life and categorizes the individual (…) It is a form of power that makes
individuals subjects’ ([34]: 331).
The criminalization of migration in the wider social context embodies the power of
subjection. Whilst ‘no single individual or group of individuals exercises power over
others’ ([35] in: ([4]: 345) – who claims ownership of the billboard ad when it passes
on the street, or the looks of the people silently leaving the bus-stop that is just being
raided? – it spreads throughout the social body rather than being confided to its central
institutions, such as the state. Foucault’s notion of subjection [assujettissement] could
also be understood in contrast to the predominant concept of power in traditional
political philosophy (‘the juridical model of power’). Whilst the latter presupposes
‘an individual who is naturally endowed (…) with rights, capabilities, and so on’ ([35]:
43) and then asks under what circumstances it is legitimate for such an individual to be
subjected to the power of the state, the power of subjection is productive. Through the
myriad of mobile, microphysical force relations it ‘fabricates and distributes subjected
bodies’ ([36]: 55); it produces reality. It manufactures subjects ([35]: 45) – individuals
liable to control and dependence – with ‘the criminal migrant’, as one of its primary
products. Therefore while the rhetoric of rights has done little to empower the most
marginalized of persons who remain painfully underequipped to deploy the discourse
to their advantage, the struggles against subjection are the characteristic political
struggles of our age.

A note on methods

This paper is based on fieldwork among Ukrainian, Brazilian and Moroccan return
migrants (and their family members) from four European destination countries: the
United Kingdom, Netherlands, Portugal and Norway. The data was collected under the
auspices of the THEMIS project (Theorizing the Evolution of European Migration
Systems), which focused on the processes of exchange of various feedback
mechanisms relating to historical, social and cultural practices of migration of
which the changing immigration laws and policies are an integral part [7]. With
the intensified discourse around ‘Fortress Europe’, it is not surprising that the
interview narratives were interwoven with the questions of legality, illegality and
increasing criminality of migration. This enabled me to capture the plurality of migrants’
legal experiences and responses to European migratory regimes with different degrees of
severity, where migrants’ legal status varied along the axes of undocumented and legal
residence (short and long term) with different experiences of semi-legality in between
[47, 63].
I analyse material resulting from eight months of data collection, stemming from 270
in-depth, semi-structured, qualitative interviews (90 with return migrants and family
members in Ukraine, Brazil and Morocco, respectively), field observations and a
literature study. The interviews were conducted in specific localities in the origin
countries known for high out-migration to Europe, representing both urban and rural
contexts: Kiev and Lviv (for Ukraine), Sao Paulo and Governador Valadares (for
Brazil), Rabat and Nador (for Morocco). Each interview lasted between one and three
hours. They were conducted in local languages (Russian, Ukrainian, Portuguese, and
Arabic) and then transcribed, anonymised and translated into English for the analysis.
 A. Kubal

Criminalization – the European way

The general rules governing foreigners’ entry into the British, Dutch, Norwegian and
Portuguese territory are that no one should be admitted unless s/he has a regular visa
and/or (depending on circumstances) a regular residence permit – in other words,
unless a person is explicitly permitted, 2 s/he needs to be authorised to enter (or to
stay). In broad terms, obtaining an authorisation to enter is contingent upon two main
conditions – although the exact details of them might vary according to jurisdictions:

i) pursuing a legitimate end (that often might be confirmed in a letter of invitation);

the journey is for a limited period of time (although the possible length may vary)
and
ii) having sufficient funds for subsistence to cover the duration of the stay in the
foreign territory and the return.

As a result, no foreigner can enter the territories of the respective country in search
for a job; would-be migrant workers can only enter if, at the time of their entrance, they
are already engaged in an official and authorised commitment with their future
employers (for compelling arguments about the artificiality and hypocrisy of this
system, see Karamanidou and Schuster [45]; Spena [69]).
An entry into the state’s territory in contravention of one of the above conditions,
overstaying a visa, arriving in a country without a passport (particularly ambiguous
when read with relation to asylum seekers), breaching a condition to enter or remain
(e.g. engaging in paid work, whist on visitor or tourist visa), failure to submit to
examination on arrival or notify the authorities about one’s stay is a crime, as inscribed
in Asylum and Immigration Act 1996, Asylum and Immigration Act 2004 in the UK,
and an immigration offence as inscribed in Dutch Aliens 2000 (Art 108), Norwegian
Immigration Act 2008 (Section 108), Portuguese Immigration Law 2007 (Art 181).
However, regardless of the formal legal classification – whether a crime or an offence –
the above-mentioned breaches of immigration law attract a variety of criminal law
derived sanctions: a fine or imprisonment for a term not exceeding 6 months or both (in
Norway, the Netherlands and the UK) or a fine of up to 700 Euro (in Portugal,
dependant on the number of days stayed illegally on the territory).
In connection with enforcement of the provisions regarding foreign nationals’ entry
and stay on the territory, the police – in Norway (Section 21), the Netherlands (Art 47)
and Portugal (Art 146) – and border agency officers (in the UK) may stop a person and
request proof of identity when there is reason to assume that the person in question is a
foreign national and the time, place and situation give grounds for such a check. These
officers are also authorised to enter, without the consent of the occupant, their home or
place of dwelling if there is ‘a reasonable suspicion’ or ‘reasonable grounds’ that point
to the person not being lawfully resident (Art 53, Netherlands; Section 103, Norway).
In the UK in particular, the Immigration and Asylum Act 1999 gave enhanced powers
to immigration officers, very similar to those possessed by the police in the investiga-
tion of crime and the apprehension of suspects ([14]: 507).

2
EU citizens, nationals of visa exempt third-countries, and – more theoretically than practically – asylum
seekers and refugees [69].
Struggles against subjection

Should it be established that a person has entered the country in an undocumented

way, or is no longer lawfully resident (e.g. due to the expiration of a visa), arrest shall
be decided by the chief of police or an authorised person in Norway (according to
Section 106), Netherlands (Art 56) and Portugal (Art 146). In the UK, the decision
about arrest and subsequent detention lies within the prerogatives and discretion of the
UKBA officer. While the main goal is – in general – deportation or removal, the
discussed European jurisdictions have different means of arriving at it. In the UK, the
existence of juxtaposed mechanisms of criminal and administrative sanctions allows
immigration enforcement officers a wide margin of discretion; Aliverti established that
prosecution generally follows when a foreigner is not ‘readily removable’ because his
identity is unknown or there is an outstanding asylum claim ([3]: 423). In other words –
there is a widespread preference of removal (deportation) over criminal prosecution.
Similarly, in the Netherlands, the undocumented immigrant – or one that has repeatedly
committed an offence against the Immigration Act (Art 67) – is ordered to leave the
country, and is released from custody if the opportunity to leave exists (Art 59).
Otherwise, pursuant to general administrative rules a foreigner can be detained and
his freedom of movement restricted in order to aid the removal process (Art 56, Art 63).
Article 59 specifies that the detention prior to removal should not take longer
than four weeks; however in special circumstances (for the purpose of estab-
lishing the identity of an individual or ‘where the alien is not cooperating’) it
could be extended up to 12 months. It is worth noting, that the deprivation of
physical liberty, regarded as the most serious punishment available in all criminal justice
systems in Europe in the immigration and asylum system, can nevertheless be imposed
upon people who are not charged with any crime nor even suspected of committing one.
In the above jurisdictions of the UK and the Netherlands, expedited directions for
detention and removal may be given without, necessarily, any kind of judicial process
([14]: 601).3
In Norway and Portugal, the black letter law relies more on procedural justice and
does not leave that much discretion to the police or immigration enforcement officers as
in the Netherlands or UK, respectively. If the police wish to detain the arrested person,
they must, at the earliest opportunity, and if possible on the day following the arrest in
Norway (Section 106) or within forty-eight hours after the arrest in Portugal (Art 146),
bring them before the appropriate court. In Norway, immigration matters are dealt with
by district courts, while in Portugal by small criminal courts, in their respective
jurisdiction, or county court, in other areas of the country (Art 146). It is the court
which decides upon an application of custodial measures (detention). In Norway, this is
regulated by the Criminal Procedure Act, as appropriate, where the time in detention
may be decided for a maximum of four weeks at a time. The overall period of custody
may not exceed 12 weeks, ‘unless there are particular reasons to the contrary’
(Section 106). In Portugal detention should not be administered for ‘longer than
necessary to allow the execution of the expulsion order’, and may not exceed 60 days
(Art 146). Also, if the foreign citizen detained during the judicial interrogation declares
intent to leave the territory of Portugal, they may – by determination of the competent

3
In the Netherlands, when the detention takes longer than 28 days, the judge of the District Court is compelled
to asses this decision, Dutch Aliens 2000, Section 5. Chapter 7, article 94. I am grateful to Heinrich Winter for
pointing this out.
 A. Kubal

court and if properly documented – be delivered into the custody of the Aliens and
Border Service (SEF) for the purpose of removal in the shortest possible time.
This brief review demonstrated that despite the divergences in individual European
jurisdictions – stronger reliance on procedural justice in some, over discretion of law
enforcement agents in others – the increased reliance on criminal law to serve functions
extraneous to its core task of censuring the most serious wrongs [50] has been a steady
tendency in Anglo-Saxon and continental European countries. Criminal law has been
increasingly employed in immigration legislation, which – as originally derived from
civil law – was meant to ensure compliance and regulation of social life in general. This
criminalization of immigration legislation is a clear example of regulation through
punishment – or, at least, the threat of it [3].
Importantly, this set of developments in the UK, Norway, Netherlands and Portugal
are not at all in conflict with the EU principles on immigration, on the contrary – the
former rather seem to be accurate translations of the latter. The two main EU-wide
legislative documents on immigration – Schengen Borders Code (Regulation 562/
2006) and Repatriation Directive (Directive 2008/115/EC, hereafter RD) – do not
require that illegal entry or sojourn be criminalized by the states, but they do not
exclude this possibility either [69]. As a result, criminalization of undocumented
migration does not stand in conflict with EU law, which was confirmed by recent
European Court of Justice judgments. 4 Whilst the Schengen Borders Code obliges
Member States to perform thorough checks on third-country nationals wishing to enter
to Schengen-area, the Repatriation-Directive provides but one major destiny for those
who entered the EU in an undocumented manner or overstayed their visa – deportation.
‘To return illegally staying third-country nationals’ is not only ‘legitimate for
Member States’, it is actually a duty ([69]: 5), where ‘Member States shall
issue a return decision to any third-country national staying illegally on their
territory’ (Art 6.1 RD), they ‘shall take all the necessary measures to enforce
the return decision’ (Art 8.1 RD), and finally in order to carry out the removal
process, they are permitted to detain foreigners up to a maximum of 18 months (Art 15.1
RD). In this way the EU law goes even further than the laws of the respective Member
States – criminalization of immigration legislation and reliance on enforcement mea-
sures borrowed from criminal law, such as detention, is legitimate from the perspective
of EU law insofar as it does not negatively interfere with migrants’ prompt expulsion
(Achughbabian 2011, paragraph 45).

Migrants’ responses to criminalization

What is the link between the black letter rules and migrants everyday life experiences?
What have the specific legalistic meanders of deportation, detention or document
checks as inscribed in law and reviewed above, to do with how migrants go about
their everyday life? At the surface level, perhaps not much, as in migrants’ narratives,
the law is absent in its formal, textual, and professional sense. However, the criminal-
ization of immigration legislation ‘on the books’ does not take place in a vacuum but
very much interacts with the wider social context. The symbolic and stigmatizing

4
In particular: C-329/11, Achughbabian; C-61/11, El Dridi, and more recently C-430/11 Sagor.
Struggles against subjection

consequences of deeming certain acts as criminal in law – where the boundaries

between undocumented migrant, asylum seeker and ‘criminal’ become blurred in the
minds of officials who deal with them and of the public ([14]: 508) – create an
environment, where the dominant features are the precariousness of stay [5, 21, 44,
65], the danger of falling foul of the law (sometimes due to no fault on the side of the
migrant or asylum seeker), and not the safety, security and stability that the image of
law would normally attract in a ‘rule of law’ country. The criminalization of migration
at the level of lived legal consciousness mediates the ‘law on the books’ with migrants’
everyday life experiences. The following sections discuss the strategies migrants adopt
vis-à-vis the criminalization framework: from reproducing the law’s hegemony through
to resistance and withdrawal.

Experiences of criminalization - reproduction of law’s hegemony

Peoples’ experiences of stay and everyday life in various European countries –

regardless of their immigration status – amounted to a bleak picture of daily life that
consisted of police raids, ad-hoc immigration checks, and an atmosphere of fear, risk
and marginalization:

They were checking all the time. There is a special immigration service that is
visiting neighbours and asking whether we don’t have a fake [marriage]…
whether we lived together, whether we are shopping together. We really did [J,
female, NL-Ukraine].

There was always the danger of someone appearing from the Home Office, some
places being raided, we could not go to work because there just was a “blitz” [M,
female, UK-Brazil]

This had immediate consequences at the level of community cohesion and self-help.
People felt isolated even though prior to the expiry of their immigration papers they
could have been active community supporters and organizers. Now, they felt, they were
left without the recourse to rights, without the support, with very limited access to legal
aid [57]. The larger point is that immigration law permeated migrants’ lives in a myriad
of ways even though they were not consciously engaged with ‘the law’. The immigra-
tion law constructed them as subjects, different from the ‘majority’, and even though
they might have not been familiar with the legal precedents or paragraphs – they have
experienced this power of ‘law being all over’ [64]:

The amount of assistance has drastically decreased because other migrants are
scared to be involved. There are strict laws about migration and many migrants
are now in prison because they dared doing something illegal [M, female,
NL-Morocco].

No, that was just too dramatic for me. I thought that the legal issue was very
important, it impacted on me a lot because…you are not a citizen, then
“who are you to talk about anything, anyway”? That impression does not
leave you [J, female, UK-Brazil].
 A. Kubal

How do migrants’ respond to this specific socio-legal environment? The criminal-

ization of migration has one pervasive effect on migrants’ lives – people are often
reluctant to challenge it. According to classical jurisprudence, people cannot be illegal,
acts – may be; in other words, driving in contravention of a Highway Code does not
produce illegal drivers but may count as illegal driving ([14, 47]: 555). Whilst migrant
and refugee rights’ groups may campaign against discrimination or offensive language,
and the legal and migration researchers produce countless arguments to challenge the
uncritical use of the qualifier ‘illegal’ with reference to migrants [22, 69] – this
somewhat takes place outside of the discursive mainstream. In everyday life conversa-
tions, both non-migrants and migrants might in fact appropriate and reproduce the
value-loaded terminology of ‘illegals’ without much reflection that these constructions
reflect particular historical and political conditions rather than absolute and natural
categories. Many of the return migrants did not resist nor contest the illegality label, but
at some stage plainly admitted:

I was an illegal immigrant, I couldn’t ask for anything [B, female, NL-Brazil].

I stayed there till my visa expired and become illegal and when you are illegal
then your movement becomes calculated [M, male, NO-Morocco].

Estava indocumentado. Ilegal. I was undocumented. Illegal [T, male, UK-Brazil].

It seems like we had a sign on our foreheads ‘I am illegal’ [E, female, NO-Brazil].

The criminalization of migration at the level of legal consciousness creates and

objectifies social realities inventing or appropriating ‘the dividing practices’ by which it
insinuates itself invisibly into everyday worlds and wields extraordinary power.
Migrants, by reproducing this discourse as taken-for-granted, legitimize the hostile
socio-legal environment and assert the hegemony of the law – its power to shape reality
without calling attention to itself [40]. They come to accept their subordination in a
society that promises freedom and equality and yet retains and perpetuates profound
inequalities. This is a particular form of adaptation to the extent that the subordination is
made to appear as part of the ‘natural order of things’ through law and its associated
cognitive processes and social structures ([11]: 38).
Aside from the cognitive level, migrants also designed behavioural strategies of
coping with the legal environment by avoiding the law or ‘keeping a low profile’ [46].
They preferred to work in private employment, refrained from using public transport;
they designed special rules between them and employers beyond the immediate
spotlight and recognition of the formal legal system:

Well, the police could not find us working in flats as we locked the door. If someone
was ringing and I was cleaning at that time I just did not open the door. After work I
also tried to leave the flat without being noticed [A, female, NL-Brazil].

I used my bike and taxis instead of the public transport. Our life was a
constant flight from the police because we didn’t have documents [M, female,
NO-Morocco].
Struggles against subjection

We knew that there might be an immigration raid before Christmas. So my

employer gave me the radio telephone and closed the greenhouse when I worked.
He told me that I should run as fast as I can and hide anywhere in case
he made two calls. That was the way he could warn me about the inspection
[R, male, NL-Ukraine].

Through these different social practices reflective of power-relations at the local

level, migrants exploited the law’s power to subvert their disempowerment. In Ewick
and Silbey’s [29] terms, their responses were directed ‘against the law’; through these
daily practices of rebellion they, at least temporarily, destabilized that hegemony. Their
actions demonstrated the wider tension between, on the one hand, reproducing the law
and, on the other – the agentive quality entailed in subversion. These empirical insights
reveal how people – at the level of legal consciousness – may recognize law as a tool
that is wielded over them and may sometimes fashion resistance to that subordinating
force, though their experiences of law and interpretations of those experiences as a ‘life
outside the law’ are merely an expression of the very ideological apparatus that creates
rule-governed subjectivity (Douglas et al. [24]: 11). The relationship between the lived
experiences of law and formal law is unequal as the former seems always capable of
expanding and transmorphing at a moment’s notice ([11]: 46). According to Ewick and
Silbey’s [29] classic triad of legal consciousness, the same person may think of law as,
objective in one instance (‘I was illegal’ – or ‘before the law’), boast of manipulating it
in the next (‘I was running away from the police’ – or ‘with the law’), and then
complain of its oppression (‘We lived in constant anxiety’ – as ‘against the law’),
without questioning or posing a real threat to law’s legitimacy. By emplotting particular
and different relationships among ideals and practices, the multiple and heterogeneous
narratives reveal their mutual interdependence ([30]: 165). Migrants reinforce the
legitimacy of the objectifying and repressive legal categories by both resisting and
reproducing them.

Resistance through contesting criminality

With the law’s power and hegemony intact – was there a way of actually breaking the
‘vicious circle’, challenging and contesting the criminalization? Coutin in Legalizing
moves [17] looked at the battle Salvadoran immigrants had fought for two decades to
win legal permanent residency in the USA. Drawing on interviews with Salvadoran
asylum applicants, observations from deportation hearings and fieldwork within the
Salvadoran community in Los Angeles, she illustrated not only the profound effects of
increasingly restrictive immigration laws on the lives of undocumented immigrants in
the USA, but also how immigrants in their ‘legalizing moves’ wrangled with the system
that classified them, structured and, in some cases, re-structured the law. Activists and
immigrants themselves challenged and stretched the law in order to define and some-
times re-define themselves in legal categories (Coutin [16]: 907). They reinterpreted the
content of categories, thereby at one level replaced government’s legal authority with
that of the community.
Similarly, a substantive number of our respondents contested and resisted the
overwhelming ‘criminality’ label, equally ascertaining as many elements of legality
as possible, in the sense of rightful and authorised conduct. The accounts of eligibility
 A. Kubal

in many socio-legal spheres expressed through payment of taxes, possessing a driver’s

licence, pursuing a course at university or having medical insurance contexts –
concurrently or over time – were put forward as if to compensate for a ‘visa expired’
status [47]:

I was not a criminal! I might have been in Portugal illegally at the beginning…
Then it was possible to get legal documents [I, male, PT-Ukraine].

Frankly speaking, from the point of view of immigration services my residence

might have not been entirely legal. But as for the tax law and social security I
observed them very carefully. I had a Portuguese fiscal number, insurance, my
employer paid taxes for me and I paid all required taxes. It was such a paradox
[A, male, PT-Ukraine].

Migrants in their narratives of their legal status, readily invoked the ‘pieces of
legality’ that could qualify them ‘beside’ and ‘above’ the ‘illegal’ to claim legitimate
spaces for themselves [2, 39, 75]. Legality in other than immigration contexts offered
itself sharply as one of the instruments in their toolkit of resistance [71]. These
narratives stressing belonging and legality, as points of identification and legitimisation,
were often accompanied with an equal emphasis on the fact of ‘breaking the law’ only
in part, when referring to remaining in the country without valid residence permits:

I feel bad about my status. As if I broke some law. Well, actually I did break a
part of it. But you know, except for it I don’t do anything bad to people!
[T, female, NL- Ukraine].

I have never done anything wrong neither in Brazil, nor here. I know I was here
illegally at some point and that was wrong, but I never wanted to participate in
anything that is not legal, like stealing for example [M, male, UK-Brazil].

These accounts illustrate a clear break from the idea that illegality might determine
perceptions regarding the moral worthiness of migrants ([20]: 16). Migrants themselves
point to semi-legality, which I conceptualized in depth elsewhere [47], as a viable
alternative to the legality-illegality binary divide, helping them to ascertain their
presence aside from their legal status:

I must tell you at the beginning that my living in Norway was not fully official. I
will be open with you [A, male, NO-Ukraine].

I'm a person who is not 100 % correct, but I pay taxes, have bank account, have
health insurance, I have everything like a normal person [M, female, PT-Brazil].

‘Not fully official’, ‘not totally legal’, ‘not 100 % correct’ emerge from the inter-
views as dominant categories that the respondents not only feel more comfortable and
more at peace with, but also that they believe more accurately reflect their situation.
Contesting the criminality label, migrants challenge particular categories and assump-
tions, often established in the law, which limit the possibilities of those whose lives are
Struggles against subjection

shaped by the law. Semi-legality, when employed heuristically to unsettle the peculiar
illusion that acts of conduct were divided originally into positive/negative, criminal/
virtuous perpetuated in law and in the wider social discourse, demonstrates that a
struggle for social change comes in part through resistance and transformation of
seemingly taken-for-granted categories and terms [37]. In Foucault’s terms, the goal
is not to abolish the power inscribed in the ‘dividing practices’ of the law, as a society
without power relations can only be an abstraction, but ‘to acquire the rules of law, the
management techniques, and also the morality […] that will allow us to place these
games of power with as little domination as possible’ ([33]: 298). This struggle
revolves around addressing the question: ‘who are we?’ in opposition to the ‘admin-
istrative inquisition which determines who one is’ ([32]:781). Semi-legality moves
conceptually beyond status and denotes a dialectic composed of general normative
aspirations and particular grounded understandings of social relations ([66]: 476).

Resistance through… departure

The assertions of legitimate, though fragmented, presence through the contestation of

law’s hegemony to objectify the difference as natural and absolute were accompanied
with quite an opposite trend of ‘resistance’ to criminalization: resistance by withdrawal,
resistance by return. At the behavioural level among our 270 respondents, there was an
observable tendency toward expedited departure with the expiry of legal documents. It
was the temporality and precariousness of one’s legal status abroad, which figured as a
prominent factor affecting the decision to come back:

Suddenly, I was illegal. I did not consider myself a citizen; there I was… nobody.
I wanted to leave [B, female, NO-Brazil].

I did not want to be always afraid that they might catch me and deport from the
country. It would be not a life but a mere existence [Y, male, UK-Ukraine].

Lack of papers was one of the reasons that pushed me to return [F, male,
NL-Morocco].

It is therefore important to stress that against common misconceptions, many

migrants – documented or undocumented – did not default on the immigration law
as the main option, or did so un-reflexively. Their decision to return (or to stay) was
preceded by careful deliberations about their future, weighing the pros and cons. They
often arrived at a conclusion that in the current legal climate, it was simply too
dangerous to stay in an undocumented way.
Was there a way out of the undocumented stay ‘in the shadows’? According to the
rule of law principle, on which the European legal order is arguably based, one would
expect being given the chance to right the wrong, to take certain steps in order to
regularize one’s stay, especially given the relatively long time some people resided in
the country, paid taxes, had children, contributed to the running of public services and
community life. In practice, there were very limited opportunities to do so. Whilst there
were some generous migrants’ legalisation programmes in Portugal in the late 1990’s
and early 2000’s, since the economic crisis, the government has become reluctant at
 A. Kubal

introducing any new opportunities. The history of ‘amnesties’ for undocumented

migrants in Portugal nevertheless makes this country stand out in contrast to the other
European jurisdictions – the UK, Netherlands and Norway – none of which would
openly admit or debate the prospect of a regularization [31, 43]. The channels for
changing one’s immigration status were therefore practically closed, which was
reflected in the experiences of many of the return migrants:

When I became undocumented I was looking for opportunities to legalize but the
question was how, how, and how. Today is too hard, too hard, too hard [C,
female, UK-Brazil].

They do not legalize people there. There are lots of people from Southern Africa,
Morocco and Turkey. It is very hard with legalization [V, male, NL-Ukraine].

On the one hand, these overwhelming responses towards return among undoc-
umented and documented migrants, due to potential criminalization, could be
interpreted as an indication of effectiveness of this specific migration policy across
different European countries. On the other hand it also begs a question: at what
price? Is the ‘effectiveness’ of the policy – migrants leaving in fear of not being
branded ‘criminals’ – commensurable with the image of Europe as the cradle of
human rights, justice and the freedom of movement? Many migrants openly
admitted that living in Europe and experiencing the penal framework for
preventing the alleged ‘illegal migration’ negatively verified their initial imagina-
tions of Europe as the embodiment of the rule of law. Their return was a protest, a
particular type of resistance – by withdrawal, by ‘not having to do anything with’
a legal system that justifies criminal sanctions against people who have lived,
established relationships and contributed to its economy, fiscal system and com-
munities, sometimes for many years.
Halliday and Morgan’s [42] additional dimension of legal consciousness – ‘under
the law’ (building on Ewick and Silbey’s famous triad) – comes very useful at
capturing this phenomenon theoretically. It emphasises the fundamental illegitimacy
of the formal state law (in the eyes of the respondents) as being core to this orientation
to legality. It also brings to the forefront ‘an incipient sense of an alternative conception
of law, which emanates from somewhere other than the state and is more
closely related to justice and ethics’ ([42]: 16). These interpretations, despite
their face value fatalism that ‘the law has won’ are integrated by reference to a
strong sense of collective dissent – as present in the experiences of migrant
respondents invoking the capacity of withdrawing themselves from the legal
environment and asserting their agency. They result from an understanding that
the collective represents a group that is systematically disadvantaged in the
larger social system in which they came to live. As all political power is
conditional upon the cooperation and obedience of its subjects, in Foucault’s
terms, this assertion of freedom by return and resisting subjection in law by
‘dividing practices’ marks also the limit of structures of power ‘when life can
no longer be bought, when the authorities can no longer do anything’ ([34]:
449–450). The consequences of such a scenario might be more dire than the
policy makers than ever anticipated.
Struggles against subjection

Conclusion

I opened the paper with a quote from Robert Merton encapsulating the essence of a
sociological phenomenon known as ‘self-fulfilling prophecy’. The concept was coined
in 1948 to demonstrate the intrinsic relationship between the social construction of
certain phenomena and their apprehension as social facts. It also, quite aptly, denotes
the relationship between socio-legal construction of crime and wider social perceptions
of crime and criminality – if men define situations as real, they may indeed become real
in their consequences ([55]: 193).
The government’s policy aim of curbing ‘illegal migration’ in fact criminalizes a
large part of mobile populations, particularly asylum seekers, or those migrants work-
ing without authorisation. Changes in immigration policy and law have the capacity to
instigate a behavioural response whereby the previously law-abiding immigrants are
turned into ‘criminals’ by simply striving to make a living. Paraphrasing Macdonald:

‘[A] student who fails to get the Department of Employment’s permission before
getting a summer job, a husband who forgets to apply in time for permission to remain
with a wife, an alien who fails to inform the police of a change of address, are
doubtless all guilty of offences which may be described as regulatory, but it would be
as inappropriate to describe them as ‘illegal immigrants’ – and, I should add , attach
criminal consequences to their actions – as it would be to describe the company which
fails to make expeditious VAT returns as an illegal business (1995: 489)’.

The situation is then opaquely interpreted as legitimizing the original policy goal of
preventing ‘undocumented’ migrants ‘flooding Europe’, rather than demonstrating the
power of the law to criminalize, to make illegal [22] many of those who are already
here. The alleged crime is taken for granted: by the government, immigration law
enforcement agents, by the general public. Whereas in fact the practices of criminal-
ization, differentiation and of legal interpretation take place within a social context and
in relation to laws, which are themselves the product of a political process relevant to
their application and enforcement.
Discussing the various experiences and migrants’ responses to this increasing
conflation of criminal and immigration law – reproducing the law’s hegemony or
struggling against criminalization in different European jurisdictions – I therefore
intended to contribute to the wider debates about the pervasiveness and symbolic
consequences of criminalization and its effects on migrants’ everyday lives. Through
the conceptualization of Foucault’s power of subjection [32] the paper opened up the
dichotomy between the ‘law in the books’ and ‘the law in action’ to make space for
theorizing criminalization at the level of lived legal consciousness, in the wider social
context. It explored new theoretical perspectives on the interplay between criminaliza-
tion as a specific mechanism of power and migrants as agents responding to this socio-
legal environment by reconciling the classic [29] with more recent perspectives on legal
consciousness [42] in their application to understanding empirical phenomena within
the specific nexus of migration and criminology.

Acknowledgments Financial support from the NORFACE research program on Migration in

Europe—Social, Economic, Cultural, and Policy Dynamics is acknowledged.
 A. Kubal

Appendix A

Photograph: Home Office/PA

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