Over the past six years, deportations of criminals are up 80 percent. And that’s why we’re going to keep focusing enforcement resources on actual threats to our security. Felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids. We’ ll prioritize, just like law enforcement does every day.
President Obama, November 2014
It’s ridiculous that the British Government should have to go to such lengths to get rid of dangerous foreigners. That’s why the next Conservative manifesto will promise to scrap the Human Rights Act . . . where there is no risk of serious and irreversible harm, we should deport foreign criminals first and hear their appeal later.
Theresa May, UK home secretary, October 2013
Darel moved from Jamaica to the UK when he was seven years old. He lived with his mother in West London, where he went to primary and secondary school, but he never regularised his immigration status. This became a problem when he turned eighteen and began looking for employment. Over the next few years, Darel had four children with his partner Shanice, all of whom were British citizens. Because he was excluded from the ‘right to work’, he acted as the primary carer for the children, taking them to school and preparing meals, while Shanice worked full-time.
Around his thirtieth birthday, Darel was informed that the Home Office was pursuing his deportation. Not only was he an ‘overstayer’ (an immigration offender), he was also accused of being a ‘foreign criminal’. The assertion of his criminality was not based on any convictions, but on suspected criminality. Under an initiative called Operation Nexus, the immigration authorities and the police formulated a deportation case on the basis of police intelligence – including information on police stops, arrests and charges that did not stick, as well as their intelligence analysis of his ‘criminal associations’ – in other words, his friends and their social groups. Darel had not been convicted of any serious offences, but the authorities asserted that, on the ‘balance of probabilities’, he was likely a ‘criminal’. Their argument hinged ultimately on the charge of suspected ‘gang involvement’. Darel was deported in September 2016 – exiled from his partner, his children, his mother, and his only home in the world – all on the basis of what the Home Office called ‘non-convictions’.1
Darel’s deportation demonstrates the lengths that the British government will go to in order to enforce the deportation of those labelled ‘foreign criminals’. Now, it seems, even those without criminal records can be deported as criminals. But the point here is not to uphold Darel’s innocence – which would only leave the wider system of criminal punishment intact – but rather to identify how ‘criminality’ is used to justify violent bordering.
Consider another example from the UK. In 2020 the Home Office tried to deport twin brothers to two different Caribbean countries that neither of them had ever visited. The twenty-four-year-old twins were born and raised in London, which they had never left – but both received deportation letters when serving prison terms (the UK removed birthright citizenship in 1983, and so the twins faced deportation to the islands of their mother and father’s birth – Grenada and Dominica, respectively). That same year, in the midst of the Windrush scandal, the Home Office was able to reintroduce deportation charter flights to Jamaica by asserting that everyone booked on the flight was a ‘serious foreign criminal’. The Windrush scandal, which raised critical questions about the legality and legitimacy of the UK’s deportation regime, was clearly not enough to stall the righteous banishment of so-called ‘foreign criminals’.
These cases point to the ways in which ‘criminals’ are produced by and managed within the immigration system. Immigration violations – and even renting property to or employing undocumented migrants – are increasingly criminalised. Criminal convictions of ever-diminishing seriousness are now seen as justifying the deportation of long-settled people, many of whom arrived as infants (or in some cases were born in the deporting state).2 ‘Foreign criminals’ – or ‘criminal aliens’, in the North American parlance – are beyond the pale, the ultimate ‘baddies’, ‘ideal villains’, and as such they raise challenging and urgent questions for migrants’ rights advocates. They demand that we analyse connections between police, prisons and borders – between cages and walls – and that we avoid arguments based on innocence, victimhood, deservingness and contribution.3 In short, the treatment of ‘foreign criminals’ points to the necessity of the abolition of police, prisons and borders.
The ‘Foreign Criminal’ and the Innocence Trap
The ideal offender differs from the victim. He is, morally speaking, black against the white victim. He is a dangerous man coming from far away. He is a human being close to not being one.
N. Christie, ‘The Ideal Victim’
Historically, immigrants have been demonised on grounds of their supposed ‘criminality’. In Victorian England, crime was blamed first on Irish immigrants (‘dangerous classes’ were labelled with the Irish-derived name of ‘hooligan’), and then on Jews from Eastern Europe – whose ‘criminality’ was concocted from broader racist tropes about ‘international Jewry’; supposed Jewish influence on government, banks and the press; and the alleged role of Jews in trafficking and prostitution in East London. These narratives prefaced the ‘myth of black criminality’ that has defined anti-black racism in post-war Britain,4 as well as contemporary panics about so-called Muslim grooming gangs.
The immigrant has been constructed as ‘criminal’, and the ‘criminal’ has long been imagined in specifically racial terms. Whether referring to biology or culture, by measuring skulls or identifying cultural pathologies, the ‘criminal’ is constructed as an outsider, a foreigner and a stranger. These entangled histories of race, crime and migration – in which the racialised outsider, the criminal and the immigrant, often blur into one another – provide the backstory to recent policies targeting ‘foreign criminals’ and ‘criminal aliens’. While ‘foreign criminals’ are enthusiastically detained and deported in various countries, this chapter focuses primarily on the UK context.
Since 2006, the British government has been prioritising the deportation of so-called ‘foreign criminals’. In 2007, the UK Borders Act introduced the policy of ‘automatic deportation’, which meant the Home Office would automatically pursue the deportation of any non-citizen with a sentence of twelve months or longer.5 Between 2006 and 2007, the number of ‘foreign offenders’ deported increased fivefold, and between 5,000 and 6,000 have been expelled annually since 2007.
Meanwhile, the immigration rules have made it harder for individuals to appeal against their deportations: the threshold for criminality has been lowered, while the right to ‘private and family life’ has been severely curtailed. The prison system has been reorganised around the ‘problem of foreignness’, with the introduction of ‘foreign only’ prisons, and the further embedding of immigration officers in prisons and police stations.6 At the same time, people with prior convictions within immigration detention have the hardest time being granted bail, and therefore predominate among long-term detainees. In the exceptional context of the Covid-19 pandemic, ‘foreign criminals’ received little clemency; this group made up the majority of those who were kept in detention or forced onto deportation charter flights.
The immigrant who commits crime reaffirms racist common-sense, and ‘foreign criminals’ have long been central to the justification of aggressive and punitive immigration policies more broadly – especially in relation to detention and deportation. In other words, it is the spectre of the dangerous, violent criminal ‘foreigner’ that justifies illegalisation, detention and deportation. This is why a politics of border abolition should centre the migrants who are criminalised: because narratives around crime and criminality play an oversized role in justifying violent borders. Therefore, it is not possible to wish away the stories and experiences of ‘bad migrants’. In fact, our politics and organising will be more consistent and compelling if we recognise that borders and criminal punishment are connected forms of racist state violence. After all, both criminals and migrants are denied the most fundamental rights of citizenship. And what is prison if not a form of internal deportation?
Recognising these connections means bringing an end to placards that read ‘refugees are not criminals’. There has long been a tendency within the liberal migrants’ rights sector to emphasise the specific vulnerabilities and remarkable talents of ‘genuine refugees’, who are then implicitly (or explicitly) contrasted with economic migrants and ‘criminals’. Constructing refugees as innocent victims makes them eligible for rights due to their suffering. However, emptying detention centres of the innocent does very little to challenge their fundamental logic. As Ruth Wilson Gilmore reminds us, the challenge ‘is not to figure out how to determine or prove the innocence of certain individuals or certain classes of people, but to attack the general system through which criminalisation proceeds’.7 Campaigns for migrants’ rights must contend with thorny issues surrounding criminalised migrants, and develop arguments that avoid binaries of innocence versus guilt, victims versus villains, deserving versus undeserving. One approach would be to work out which kinds of argument hold for criminalised people, and to build out from there – or to evaluate particular campaigns in light of what they imply for those with criminal records.
In the British context, there are many issues we could fight for that would benefit ‘foreign criminals’ – and, by extension, everyone subject to immigration controls. We should campaign to end the policy of ‘automatic deportation’, removing the assumption that non-citizens in the criminal punishment system should be deported by default. Before 2007, criminalised non-citizens were often deported, but their cases were assessed on the basis of several factors: personal ties in the UK and the country of their citizenship, family life, the nature of the criminal conviction, age (upon arrival and upon conviction), as well as other relevant personal circumstances. The idea that there is an overwhelming ‘public interest’ in deporting any and every one with a criminal record had not yet been established, and so people who arrived in the UK as infants were mostly spared deportation. It is perfectly feasible that the UK could return to such a model, even while we also work to disrupt the notion that criminalisation is an effective way to respond to harm, and that deportation could ever be a just consequence.
More broadly, to improve the outcomes for criminalised migrants substantively, we need to increase access to justice for all migrants. In the UK, there have been sweeping cuts to legal aid in the last decade that have left many non-citizens unable to secure decent and affordable representation. If campaigners were able to secure greater access to legal aid and extend the scope of decent, free representation, this would significantly improve outcomes for individuals facing deportation. Relatedly, criminalised migrants are often deported despite their family ties. The right to respect for private and family life – enshrined in Article 8 of the European Convention on Human Rights – has been hollowed out. We should not only defend Article 8, but seek to expand the ways in which private and family life can be recognised and valued. Despite the attendant dangers of reproducing heteronormative family scripts, rights to family life do provide important lifelines for people facing deportation. By extending their remit we might be able to limit powers of deportation.
We should also campaign to end deportation charter flights (which are repeatedly justified by the putative criminality of those booked on them), and to end indefinite detention – in fact, to close detention centres altogether. This would reduce the carceral reach of the immigration regime, benefiting everyone facing the threat of deportation. We might also campaign to prevent the deportation of people who arrived in the country as infants, setting a cut-off point so that people who arrived before a certain age – or who have lived in the UK for a particular length of time – simply cannot be deported at all, regardless of the seriousness of any offence they might have committed, because they are de facto nationals.
None of these reforms are perfect, and all of them risk creating new divisions and lines of exclusion: What about those who arrived as adults? What about those who do not have children, partners or a family? What about those who have good lawyers and access to legal aid, but still lose their deportation cases? None of these reforms – however non-reformist – fundamentally overcome the violence of deportation. Still, they would significantly improve the prospects of thousands of people, and would together reduce the remit of the detention estate and the deportation regime. Crucially, they would benefit all migrants who face deportation, in a way in which policies for specific categories of vulnerable and deserving migrants – such as ‘child refugees’ and ‘victims of trafficking’ – do not. This is because they do not reproduce arguments about innocence, contribution and victimhood – which always infantilise and exclude – even if they do still rely on arguments about belonging.
Another issue deserving of the attention of campaigners relates to the criminalisation of immigration violations. Increasingly, states are creating new crimes of immigration. These include illegal entry or re-entry; overstaying a visa; working without papers; using fraudulent documents to access employment and public services; and assisting migrants to cross borders. Since 2016, people defined as ‘illegal workers’ in the UK can face six-month prison sentences with an unlimited fine if they are found working without the correct paperwork – and any income the individual earned from working illegally may be seized by the Home Office. More recently, the home secretary, Priti Patel, has vowed to close routes to asylum, and to introduce ‘new maximum life sentences for people smugglers and facilitators’.8 Meanwhile, in continental Europe, activists and humanitarians who assist and rescue stranded migrants in the Mediterranean Sea are facing lengthy prison sentences for smuggling offences, while in the United States tens of thousands are criminally prosecuted each year simply for illegal entry or re-entry to US territory. Moving and staying without authorisation are now criminal offences, subject to the full force of the criminal law.
This group of offences is what most people imagine when they think about the ‘criminalisation of migration’. These policies are controversial, and evidently draconian, and perhaps therefore represent a weak point worth campaigning around. At the same time, many of these criminal laws are underused, prosecution being only a last resort. There is often more than enough latitude within immigration law to allow states to effect deportation without the need to resort to criminalisation. Indeed, the problem for many migrants is not one of criminalisation so much as the lack of criminal due process rights, and the inability to have one’s case heard in any court in the first place.
More importantly, there is a danger that, in campaigning against the criminalisation of immigration, we might end up arguing that the individuals in question are not really criminals – echoing Barack Obama’s instinctive contrasting of violent ‘gangs’ and ‘felons’ with ‘working moms’. In short, even if we might wish to relegate immigration enforcement to the civil rather than the criminal arena for the time being, it is important not to isolate immigration crimes from other crimes. Here, we can turn to those working towards prison and police abolition, who must always contend with the ultimate question: What about the rapists and murderers? The answers they rehearse can help us defend criminalised non- citizens, whatever their offences.
Learning from Prison Abolition
When, as happens all too often, prison abolitionists are faced with the question: What about the rapists and murderers?, they reply by laying out some of the core tenets of abolitionist politics. They insist that we cannot usefully respond to violence by inflicting more violence, and that we therefore need to move beyond vengeance and punishment. They remind us that the criminal punishment system does not respond to or alleviate most forms of social harm. People die, are left to die, and are killed in multiple ways that are never defined as crimes or made subject to criminal law. Poverty, structural violence, slow death, social murder, corporate crime, death at work: none of these structural phenomena are what we have in mind when we discuss crime and criminals. Equally, gendered violence is endemic, and most acts of sexual violence and abuse will never be addressed in court. Locking up a handful of perpetrators – mostly the poor and racialised ones – does little to challenge gendered violence or improve safety.
Prison abolitionists do not shy away from the horrifying scale of this violence and social harm. Rather, they ask us who is served by locking away the poor and racialised people who are responsible for a fraction of it. Prisons do not alleviate social problems, they lock them away – and they do so by disappearing modestly educated people in the prime of their lives. Prison is a form of torture that does nothing to make us safer, and yet still most people find it impossible to think beyond.9
Prison abolitionists try to develop preventative and practically effective approaches to social harm – especially gendered and sexual violence – and have developed distinctive strategies and theories for community and transformative justice. People who enact harm and violence must face consequences – but accountability is not the same as punishment. Prison abolition rejects the binary distinction between victims and perpetrators, recognising that we all harm one another in various ways and are all capable of change.10
Prison abolition is not about simply demolishing prisons and keeping everything else the same, but rather about building a world where we do not rely on prisons and punishment because people have the things and the tools they need. As Mariame Kaba argues:
Let’s begin our abolitionist journey not with the question “What do we have now, and how can we make it better?” Instead, let’s ask, “What can we imagine for ourselves and the world?” If we do that, then boundless possibilities of a more just world await us.”
This emphasis on presence (the presence of things we need to flourish) rather than absence (the absence of prisons and police) suggests strategies for organising and campaigning. Ruth Wilson Gilmore’s reflections on a successful campaign against prison expansion in California are telling here:
[T]he California Prison Moratorium Project, which doesn’t have the word ‘abolition’ in its mission statement, could join forces with grassroots environmental justice organizations in the Central Valley in order to fight against prison expansion. And to fight against prison expansion, we would, by joining forces, also have to fight on behalf of clean water and adequate schools, and against pesticide drift, toxic incinerators, all of that stuff. This raised anti-prison organizing in that region to a true abolitionist agenda, which is fighting for the right of people who work in the Central Valley to have good health and secure working conditions and not be subject to toxicity, in spite of the fact that so many of the workers in the valley are not documented workers.11
By focusing on what people actually need in order to live better and safer lives, campaigns against prisons can gain wide popular support. How might this be transposed to border abolition? It demands that we convince people who imagine themselves to be ‘natives’ – (mostly white) citizens – that borders do not protect or benefit them. It means fighting for better jobs, housing and health without invoking a racist zero-sum game. To make this work, it is important that citizens and migrants work together, often at the local level, in pursuit of better conditions for all. By doing so, the very categories of citizen and migrant might be exploded altogether. Like prison abolition, these strategies require not only political commitment, but a political imagination that prefigures the world we want to build.
Police and prison abolitionists also recognise that, to respond to violence and conflict in our neighbourhoods without calling the police, we need to cultivate thick social connections and practice local community responses. This can be applied to community resistance to immigration raids in homes and workplaces – which rely on building local networks of communication and resistance, ready to share information, confront agents of the state, and support people facing raids. This is precisely the strategy of anti-raids networks in London and across the UK.
Moreover, effective approaches to campaigning against prison expansion can be applied to campaigns against detention centres. This often means working at a local or regional level to convince local residents that a prison or detention centre should not be built in their area. Some of the most longstanding campaigns against detention centres in the UK have functioned locally. From campaigns against prisons, we can also see that successful strategies rely on multi-pronged approaches – sometimes being in the room with planners and politicians, sometimes protesting at the gates or supporting striking prisoners and detainees. Crucially, the fight for border abolition, like that for prison abolition, needs to be both practical and utopian: committed to radical action now while also to orienting ourselves to longer time-frames.
‘Foreign criminals’ are not an easy group to defend; to do so requires a combined critique of prisons and borders. With this in mind, we can see that the deportation of ‘foreign criminals’ is not only wrong because it is a form of ‘double punishment’, as is often argued, but because the initial criminal punishment was itself wrong and unjust. This is not only a question of unfair immigration consequences, but of unjust criminal punishment practices in the first instance. The important challenge is thus not only to learn from prison abolition, but to recognise that the policy changes we are fighting for are often one and the same.
This means that campaigns against prison expansion, and attempts to reform (or transform) drug policy through decriminalisation, are profoundly relevant to border abolition. Likewise, the decriminalisation of sex work would significantly improve the lives of many non-citizens (even as migrant sex workers must also escape the condition of deportability). As we noted in the introduction, the racist policing of ‘gangs’ leads to the deportation of young black men in particular;12 thus, transforming society’s approach to youth violence and drugs policy would help reduce the remit of detention and deportation in important ways. More broadly, the demand to defund the police – reducing their capacity, revenue and remit – and campaigns to remove police officers from schools are intimately connected to the struggle against internal borders. In the end, the struggle against criminalisation and illegalisation is always a shared fight; the cages and walls will rise or fall as one.
If the figure of the ‘foreign criminal’ justifies the worst excesses of border violence, then border abolition must be committed to their cause. There can be no effective campaign or strategy that reproduces the distinction between (innocent) migrants and (guilty) criminals. Criminalisation and illegalisation are connected forms of racist state violence, and the plight of ‘foreign criminals’ makes this especially clear.
In our struggles to dismantle borders, there is much we can learn from prison abolition. While we might campaign for non-reformist reforms now – perhaps engaging with politicians and large NGOs in pursuit of less bad policies – the success of border abolition ultimately hinges on the building of mass power and the cultivation of lived connections between citizens and migrants, both of whom are violated by the false promises of nationalism and capitalism.
Given the massive street mobilisations for Black Lives Matter in recent years, as well as mass protests against climate breakdown – especially among young people – it is clear that there are quite literally millions of people committed to transforming the world. The challenge is to connect border abolition to these lively debates on police, prisons, the environment and feminism. This is the only way we can win.