Governance in the neoliberal era: The rise of crimmigration

Ria Rampersad, PhD student, Nottingham Trent University

Keywords: Legislation, criminalisation of immigration, neoliberalism, access to justice

Graphic: Ria Rampersad

The term ‘regulation’ brings to mind any attempt to direct or control behaviour. One might be familiar with regulations that guide professional conduct, product quality or health and safety. The term ‘regulatory law’ is perhaps less familiar but equally efficient at manifesting predictability and desirability of results. Regulatory law can be construed as law with a unilateral focus, narrow in scope and singular in its intended outcomes (Benedicte-Dembour, 2010).  Due to its partiality and specificity, it is often criticised for its lack of objectivity, a feature commonly attributed to the instrumentality of its design (Margit Cohn, 2003).

Applied regulatory law is on the rise in most Western democracies of late, including in the realm of immigration legislation. From a human rights perspective, debate on the legitimacy and credibility of such laws is polarising with some arguing in favour of the control function  and many against the partiality of the approach. This post will examine some of those concerns.

Criminalisation of Immigration (Crimmigration)

From the late 1990s to the present, the application of criminal law sanctions to immigration offences began to quicken apace among Western states. In this transformation, the legal conceptualisation of immigration evolved from its originally civil categorisation, in which illegal entry equated to a lack of status, to its current criminal iteration backed by imprisonment (Aliverti, 2017).

In the UK, the influence of regulatory law can be identified across several different pieces of legislation, the provisions of which created logical and legal connections between immigration, asylum and crime. From the 1996 Immigration Act to the 2007 UK Borders Act, 2022 Nationality and Borders Act and 2025 Border Security, Asylum and Immigration Act , the idea of a relationship between immigration and crime has only been strengthened. From a legislative standpoint, the intention to deter undocumented immigration via the application of criminal sanctions to civil offences is abundantly clear, the question is why? To understand the unilateral reasoning underpinning regulatory law as the policy tool of choice to address the issue of immigration, consideration of the influential factors constraining political choice is first warranted.

Neoliberalism and the role of regulatory law

Regulatory law is emblematic of the agility that has become core to the current political era, one that is punctuated by the dynamism of neoliberal ideology. Neoliberalism itself may be defined as a mode of governance that pledges allegiance to the wisdom and neutrality of the ‘invisible hand of the market’ (William Davies, 2019). It is the need to curtail risk and maintain power over the status quo that drives regulatory law’s policy ethos. At its core, the goal of the neoliberally-aligned state is foremost to ensure economic optimisation and social cohesion.

A desire to achieve efficiency and effectiveness is inescapably evident within regulatory law. Its one-sided and overly prescriptive approach is facilitated in part by decontextualisation, the goal being the achievement of very specific and narrow ends, not the fulfilment of justice, morality or good legislative drafting (Scott, 2004). Given the heightened attention that the discourses of immigration, asylum and crime have garnered in recent times, it is unsurprising the extent to which regulatory law has assumed exceedingly more punitive and irrational forms. Indeed, discordance with rule of law principles has become exemplary of regulatory law, a point highlighted by various theorists in the field across its multiple iterations (Ashworth, 2013).

The regulation of citizenship

Certain elements of regulatory law, specifically as it relates to nationality and asylum, derogate ethically from human rights and international law principles and are evidenced both in the legislation and case law. With respect to the former, article 15 of the Universal Declaration of Human Rights mandates that all persons should have the right of nationality, yet several pieces of legislation from the 1981 British Nationality Act to the 2007 UK Borders Act and 2022 Nationality and Borders Act,  have rendered citizenship contingent on individual conduct for those lacking official entitlements. Those resident in the country without formal acknowledgement of their citizenship status are denied the security of belonging and are subject, on account of their criminal behaviour, to deportation ‘conducive to the public good’.

This was observed in the case of Akinyemi v the Secretary of State for the Home Department (EWCA Civ 236) in which a repeat offender, whose naturalised British citizen parents, having failed to secure him equal status, rendered him liable to deportation on account of the insecurity of his nationality and criminal transgressions. In relation to asylum and the legality of the act of seeking asylum, Section 59 of the 2023 Illegal Migration Act is instructive. The partial and overly prescriptive nature of regulatory law is demonstrated in the demarcation of select countries from which a claim of asylum would be legally entertained , a categorisation which departs from the universal right to seek asylum.

The regulation of immigration

Politically, logic would appear to affirm the use of regulatory law to curtail what has come to be defined as the core challenges of the neoliberal era, nationality and belonging, however, the consequences faced by those subjected to its dictates appears disproportionate and biased from a legislative standpoint. In actuality, the incongruence between regulatory law’s prescriptive nature and the lack of legal predictability in its outcomes is a gap acknowledged both in the legislation and case law.

This ‘qualitative decision making’ is evident for example in Section 37 of the 2022 Nationality and Borders Act, where the determination of a ‘reasonably practicable’ time for the submission of an asylum claim is the outcome of a discretionary undertaking. Further underscoring the point of subjectivity as an inherent aspect of the decision-making process, are the remarks of the presiding officer in Secretary of State for the Home Department and AA Ghana 2018, where it was acknowledged, in respect to the admissibility of a deportation order, that ‘a qualitative test must be applied when assessing the degree of social and cultural integration’. The variance between the legal specificity and severity of punishment of the use of such measures as opposed to the looseness of its application may disadvantage those on the receiving end, begging the question: does regulatory law align with the theory of justice?

It is natural and expected that States take measures to safeguard their sovereignty, however, it is also important that any such legislative measure is not short-sighted. Whilst it is tempting to embrace apparent ‘quick fixes’, it must be borne in mind that there are no easy solutions to complex problems. Regardless of the form, policy instantiated in law should be both objective and representative of the rule of law.