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Managing immigration: Between an administration logic and a criminality logic

Introduction to the Special Issue
Nicolas Fischer et Mathilde Darley
Traduction de John Atherton
Cet article est une traduction de :
Le traitement de l’immigration, entre logique administrative et logique pénale

Texte intégral

  • 1 These provisions are scheduled to be incorporated into French law by the “Besson” statute currently (...)

1After what is generally referred to as the “punitive turn” in Western European migrant policies when describing the restrictions introduced concerning entry permits and asylum procedures in the early 1990s (in particular after the fall of the communist regimes), most observers took note of a further step in the tightening of Western immigration policies after the terrorist attacks of September 11th 2001 in the United States. This new turn is commonly linked to the activation (or reactivation) of ways of warding off “undesirable” foreigners by, in particular, increased dependence on filtering operated outside national borders (so as to prevent migrants from reaching Western European soil) and by growing recourse to the incarceration of foreigners who have entered the country illegally (Dow, 2004) – as witnessed by the adoption, in June 2008 (at the European level), of the “return directive” which not only provides for the detention of migrants for a period that can be extended to eighteen months pending their expulsion, but also the prohibition of return to the “host” country in cases involving an undocumented foreigner – a measure that up to now was applied exclusively to foreigners with a European criminal record1. A series of texts recently adopted by the Western European nations also bear witness – by the administrative and judicial categories that they determine and the agents and procedures that accompany them – to the increasingly frequent recourse, for managing “irregular” foreigners, to techniques customarily reserved for criminal affairs – such as incarceration or banishment from the territory in particular.

2The contributions assembled in this Champ Pénal/Penal Field dossier set out to explore this tendency to “criminalize” immigration control by adopting a double perspective. First of all, grasping empirically what it implies by examining the institutions and the actors involved (civil servants, human rights organisations’ representatives, the migrants themselves). Subsequently, approaching this criminal evolution of immigration control not as a given, but as a dynamic tension due not only to the legislative measures adopted, but due as well to the ongoing interactions between those traditionally in charge of administrative control – from the prefecture to the labour bureau – and the criminal institutions. While these two sets of institutions and actors appear to involve different categories of civil servants, different audiences and different procedures, the texts presented here arrive at the empirical conclusion that there exists an increasingly high degree of interpenetration between the logic that governs the control of immigrants when it is in the hands of the traditional managers and the logic characteristic of actors in the criminal justice world.

3To be sure the interconnections between controlling immigration and criminality are nothing new in and of themselves: historical studies devoted to the origins of the border police in the major Western nations have made clear their link with the evolution of police techniques for controlling the population in general (for the North-American case see, among others Ngai, 2005 and Kanstroom, 2007; for a European example see the German case described in Weber, 1996). In describing the birth of modern police identification techniques in France, Gérard Noiriel emphasized the central role it played not only in the supervising of foreigners and their movements, but as well in creating a system of judicial identification designed to control criminal offenders (Noiriel, 1991). These various studies insist, nonetheless, on the distinction that existed at the start between managing offenders and managing immigrants; while it is a question in the two instances of controlling populations, the immigration administration was quick to establish norms, objectives and professional staffs and finally a specific set of administrative routines. The procedures that governed the delivery or retention of residency documents, or even those dealing with the deportation of foreigners, were the product of a particular logic in which demographic, economic and political requirements were shaped by local factors affecting the administrative control of foreigners (Spire, 2005; Calavita, 1992).

  • 2 See in particular the Eurodac file, created by ruling no. 2725 of the European Union Council for a (...)
  • 3 While the absence of a residence permit constitutes, since 1938, a indictable offence under French (...)

4This particular approach to administrative management has thus different historical roots from that which governed institutions involved in the management of criminality. Yet it is between these two forms of population control, for the most part sealed off one from another, that one can observe, in the course of the last decade if not more, an increasing interpenetration. To be sure, in the 1980s most countries developed or reinstituted specialized techniques for combating irregular immigration (new requirements for the issuing of residency documents, more refined identification techniques, or recourse to administrative detention for those being deported). Several authors have nonetheless pointed to the close links between the police techniques used in the control and repression of criminality and those currently employed for the handling of “irregulars” (Bigo, 2001; Den Boer, 1998). This evolution is particularly evident on the European level as shown by the institutionalization of procedures for computer and biometric2 filing of an increasing number of categories of foreigners whose only misdemeanour – being without a residence permit – is of an administrative nature. Moreover, in several European countries, raising the possibility of disorderly conduct can of itself justify whether a residence permit is to be issued or withdrawn or even serve as a reason to prolong administrative detention in cases of deportation, while at the same time the recourse to penal sanctions is increasingly frequent for foreign irregulars3.

  • 4 In the case of France the numerical targets fixed for civil servants whose job is to keep check on (...)
  • 5 In this regard the French circular of October 22nd 2003 explicitly subordinated the activities of t (...)

5This inclusion of criminal provisions in a good number of contemporary immigration policies entails a corresponding increase in activity on the part of actors who, more traditionally, were focused on criminal repression. In the case of the police and its role in the management of irregular migrants, one can speak of an intensification of the controls (that have always existed as a legitimate field of action for them) even in the absence of any previous marked and systematic commitment4. This increasing pressure to which foreigners are subjected also takes the form of closer cooperation of the police with immigration authorities and with the services in charge of foreigners as well as the requirement of a greater degree of coordination between the police and local agents5. The judiciary, as for it, intervenes all the more in the control of foreigners in that courts are called upon to deliver the sentences and the penalties, which, as we have seen, are in constant progression. Thus for the judges and for others involved in criminal affairs, the control and repression of immigration, formerly a marginal concern, has become a chief bone of contention for which the instructions handed down for determining the “criminal law solution” only serve to accentuate the domination exercised by the central government.

6To speak of the criminalization of immigration control does not mean denying the specific role played by the various institutions and their staff. It is rather a means of exploring the empirical transformations that occur when the immigration officials are called upon to adopt a criminality approach and when those in the criminal field are summoned to take part in immigration control. To take as subject the tension between the logic of the administration and the logic of criminality is thus to stage a dialogue between disciplines, between fields of research and between matters that traditionally have been treated separately.

1. The transformations of immigration control and the mutations of social control in developed nations

7As was said at the beginning of this introduction, the administrative control of foreigners on one hand and the management of the criminally delinquent on the other, although differentiated, were never totally separated. Our aim here –rather than to expound the hypothetical “novelty” of the intermeshing of criminal policies and the management of immigration– is to shed light on the recent evolution of the structures both of the criminal system and of immigration control, and the relations between them. This evolution takes place on two levels, which are complementary but which, since the 1990s, have not received the same degree of attention in social science studies.

8On a first level: the construction of a criminal approach to the treatment of immigration as a public issue that supposedly orients public policy concerning immigrant control. There is no dearth of studies, in this case, on the rapid surge of irregular immigration that constitutes to an increasing degree the key issue, in Europe as in North America, since the early 1980s. Seen in a theoretical perspective this shift in the way in which migrants are perceived is linked to a larger scale transformation of the economies of Western Europe, and their structural link with the definition and management of segments of the population considered as deviant. The studies that are now considered as “classic” devoted to the “punitive turning point” in the West linked thus the neo-liberal structures of the economy and the management of social issues to a shift of the criminal system from a logic of rehabilitation to that of confinement and quarantine of the “dangerous classes” (Garland, 2001; Feeley, Simon; 1992; De Giorgi, 2010).

9While this new tendency was evident more in the language adopted than in the actual procedures of immigration control, a series of studies emphasized, from the 1990s on, an unanticipated surge of migrants has traced thus the progressive construction of the irregular migrant as the very symbol of the new approach to crime governance that emerged in the 1990s (Inda, 2006). Since he is considered both as an illegal who has transgressed the law and as a person attempting to profit unjustifiably from the social aid of the host country, the migrant amasses the faults, evoking not only the criminal scene but as well the figure of the “welfare bum”, a figure that hard-working “responsible citizens” should keep at the greatest possible distance. Because he is constantly on the move, the irregular foreigner re-enacts the figure of the elusive vagabond (Nevins, 2002). As a general rule, the analyses devoted for the last twenty years to the mutations of immigration control all agree – without necessarily subscribing to the “punitive turn” hypothesis – on the shift in the representation of the migrant in the medias and institutions: seen in the 1970s as the agent of greater economic effectiveness – and from that point on stigmatised as an economic burden and what is more, a contributor to the risk of destabilization and as a threat to the social cohesion of the host country. In North America as in Europe, irregular immigration from then on, found its place in a continuum of “menaces” ranging from terrorism to drug trafficking, including the trading and trafficking of immigrants (Andreas, 2003; Andreas, Snyder, 2000; Bigo, 1996, 1998).

  • 6 We can also cite Carolina Boe’s doctoral thesis, soon to be completed, on the resistance strategies (...)

10In the field of criminal studies, a few publications linked this overall evolution to the treatment accorded the foreign population by the judiciary and penitentiary authorities, yet they were few and far between. Concerning the judicial treatment of foreigners we can cite a limited number of European or North-American studies: Palidda, 1997, 1999, 2009; Tournier, 1997; Quassoli, 2000; Coutin, 2003. As to the foreigners incarcerated, sociological analyses are rarer still, even if several works are in progress – as evidenced by Yasmine Bouagga’s article in this issue6. Except for these relatively few analyses, the fate of foreigners in the “criminal justice network” has hardly ever been studied in and of itself. It is the more frequently simply evoked in passing in the course of works devoted to criminal procedures in general or to the treatment of visible minorities due to be tried, regardless of their nationality (Goodey, 2006; Mucchielli, 2003; Jobard, Nevanen, 2007).

  • 7 The influence of security agents in the setting up of a common migratory policy is particularly evi (...)

11 Moreover several research trends have emerged over the last twenty years or so, dealing with the transformations of immigration control and the convergence between immigration and security evoked above. These publications return to the question on a European level, setting it in the context of the very history of these institutions and the constitution of a common migratory policy: several authors have thus pointed to the decisive role played, from the 1970s on, by security agents (police authorities and interior ministers) in the transnationalization of immigrant control (Bigo, 1996; Guiraudon, 2000, 2003). Installed as intergovernmental experts, these practitioners of control were thus the principal architects of the first European instruments in the service of a common immigration policy, in particular the Schengen Agreement7.

12In a similar perspective a group of researchers has attempted over the last twenty years to trace some of the institutional and practical consequences of this evolution. Yet here interest was focused above all on the contemporary shift of geographical borders and the provisions for controlling them. The externalisation of borders and the delegation of an increasing part of control to the nations on the frontiers of the Schengen Area (or to states bordering the North-American block) has been the subject of an abundant literature, as have the administrative and police structures that have rendered this evolution possible: the Schengen visa, the declarations concerning “intelligent frontiers”, the “camps” or holding centres set aside for immigrants (Bigo, Guild, 2003, 2005; Beaudu, 2007; Andreas, Bierstecker, 2003; Bernadot, 2008). While certain studies have also described, in ethnographic terms, the ongoing coordination between the various national European police departments (Sheptycki, 2002), their principal thrust has been to analyse the construction of irregular immigration as a security issue; the procedures and the concrete measures that form part of these repressive policies have elicited only a few publications.

2. Describing empirically the evolution of control procedures

13The studies cited above are packed with valuable lessons on the contemporary transformation of police powers and the technical innovations that are the result. The approach that we propose however aims at filling them out, concentrating on the convergence between criminality and immigration control through ethnographic descriptions of the measures adopted and the procedures that provide their concrete format.

14A series of ethnographic works has to be sure already appeared devoted to irregular immigration and its management, but they are for the most part focused on a specific segment of the population – the migrants themselves or the civil servants in charge of controlling them – whereas this issue of Champ Pénal/Penal Field aims above all at staging a dialogue between the two. The compartmentalization of the two subjects tends in effect to mirror the partitioning of the academic disciplines themselves. In the sociology and anthropology of immigration, several studies have been devoted to irregular migrants and the strategies they employ to prolong their stay once present in the country (Engbersen, 1999, 2001; Engbersen, Van Der Leun, 1998, 2003; for a résumé of English studies on the question see De Genova, 2002). These analyses describe, with great finesse, the tactical exploitation of judicial norms that the migrants are capable of instigating, with in some cases the help of NGO representatives who serve as go-betweens in their dealings with the administrations (Coutin, 2000; Willen, 2007a, 2OO7b; Chauvin, 2010). Yet with only a few exceptions, the focus is on the foreigner and the question at issue is that of the integration or permanent marginalisation of the immigrant reduced to sub-citizen status or “restricted affiliation” (Chauvin, 2010).

15In comparison with these studies, we would cite another set of ethnographic publications, in a more political science vein, focusing this time on the application of immigrant control by the “administrative” staff. While these analyses are still few in number, their recent increase is an indication of the importance, within the scope administration activities, that the management of foreign immigration has taken on today. The empirical data that has been gathered in this domain – in the surveys of Alexis Spire on the handling by the prefectures of deportation proceedings (Spire, 2008) or the studies by Mathilde Cohen on the inner workings of the administrative courts (Cohen, 2009) – illustrate the increasingly repressive aspect of administrative assignments that were traditionally characterized by the emphasis on the “administrative” to the detriment of the “punitive”. From this point on, the image that the civil servants have of their work (and the conflicts that may well be generated by the exercise of their profession) have been characterized by an increasing subservience to the requirements, in particular the police requirements, regarding the stopping of foreigners and their rapid exclusion. This evolution, which is more than evident in the case of France, confirms the transformations that similar research projects have described elsewhere in Europe (Jordan, Strath, Triandafillido, 2003; Cohen, Humphries, Mynott, 2002).

16This research applies to the administrative management of foreigners (and its evolution) the ethnographic approach which, for a number of years already, has attempted to grasp “from the bottom up” the contemporary transformations of state institutions and the social regulation that they guarantee – whether it be a question of administering “precarious” segments of the population (Dubois, 2003; Weller, 1999) or controlling deviants (Darley, Gauthier, Hartmann, Mainsant, 2010; and for an overview Jeannot, 2008). The leading contribution of these analyses concerns, here once again, their proposal of a microsociological approach to the study of civil servants and their work – analysing in particular what can be explained in terms of individual life histories and what is due to the professional socialization characteristic of certain administrative grades or departments that constitutes a “bureaucratic ethos” more or less intensely interiorized (Spire, 2005). The second contribution of these studies consists of the renewed interest in the importance of the initial phase of concrete application of public policy in the field, which is here considered most pertinently as a genuine moment of the construction of public policy, even of its reinterpretation and a reconsideration of its orientation.

17Whether it be the sociology of irregular immigration or the ethnography of public policy, the studies that we have cited remain focused nonetheless on the procedures and the strategies of one sole category at a time – immigrants, association militants or civil servants – without, except in a limited number of cases, situating the actors and their practices in the context of the local structures of policy making in which they evolve. While these studies adopt as a point of departure the particular experience of certain groups, the texts presented here aim, on the country, at describing the interactions between the various actors involved in immigration control. In effect, the application at the local level of immigrant control can only be encompassed in relational terms as the result – always unstable and temporary – of the confrontation or the cooperation between the different branches. As will have been understood, this approach entails as well a description of the process of criminalization of this control such as we have defined it. If it holds true that immigration management is in effect caught up in the tension between an administrative logic and a criminal logic then a manifestation of this tension is the intervention of new actors and the setting up of new forms of coordination between the services habitually isolated one from another, a process such as already sketched out at the start of this introduction, but one for which the texts collected here will provide an empirical description.

18This is the program that this issue of Champ Pénal/Penal Field has set out to realize, with moreover the concern to grasp the criminalization process as it is implemented in several European nations while at the same time dealing with an array actors and a multiplicity of sites. The civil servants involved today in the criminalization of controls will first of all be analysed in terms of their diversity – starting with the administrative personnel for whom the “repressive” role is something new that marks a decided evolution of their practices and professional ethos: thus the Italian and Moroccan consular agents whose activities and self-representations will be replicated by Federica Infantino on the basis of a detailed ethnographic survey, – or the Belgian work inspectors, studied by Carla Nagels and Andrea Rea, who have been pressed, by the evolution of social law, into serving more or less voluntarily as agents of the repression of irregular immigration; or once again the use made by Thomas Léonard of a series of ethnographic monitoring in his exploration of the fate reserved for foreigners. While the activities of these civil servants are necessarily observed in the context of their relationship with the public, other contributors are interested in the effects of repressive control on thus who suffer from it, and also in the forms of re-appropriation or resistance that it can provoke. This development can be observed in two incarceration zones. In the case of administrative detention centres where foreigners awaiting deportation are held temporarily, Stefan Le Courant analyses the two complementary effects of “precariousation” and stigmatisation brought about in foreigners by their experience of police control. In regard to prisons Yasmine Bouagga describes the activities of the legal consultants responsible for aiding incarcerated foreigners, as well as the capacity of the inmates – at least those who have some knowledge of legal issues – to make use of the law.

19It is thus a microsociological exploration of the tendencies at work today in the immigration policies – and as well and as an original ethnographic analysis of the relationships between agents of the state and those that they manage on a daily basis – that readers are invited to share as they go through these contributions.

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Notes

1 These provisions are scheduled to be incorporated into French law by the “Besson” statute currently being discussed. If this takes place, the prohibition on re-entering the country must in addition be reported to the SIS (Schengen Information System) which is a European police file in which foreigners without residence permits, but having committed no offence, were up to now not included.

2 See in particular the Eurodac file, created by ruling no. 2725 of the European Union Council for a comparison of finger prints of asylum seekers and those of irregular migrants, a ruling which came into effect in January of 2003; see also the SIS created June 19th 1990 by the Convention Implementing the Schengen Agreement, which provides for the exchange of information between the police of the member states concerning certain categories of persons considered as potentially dangerous security risks and in particular foreigners who have been refused entry.

3 While the absence of a residence permit constitutes, since 1938, a indictable offence under French law, the issue of a “criminal law solution” for irregular migrants found within the country has recently been reactivated by the “Sarkozy” circular of February 21st 2006. In this case, condemnation can result in imprisonment. Italy has just adopted a similar stance, punishing the entry and residence of irregular migrants with a penalty that can go as high as 10,000 Euros.

4 In the case of France the numerical targets fixed for civil servants whose job is to keep check on foreign irregulars has, for example, largely contributed to the evolution of police tolerance (or rather the lowering of police tolerance) for “violations of the laws governing foreigners”.

5 In this regard the French circular of October 22nd 2003 explicitly subordinated the activities of the agents of the prefecture to police dictates by providing for the organization of “a bureau situated in the prefecture to be open at night, on holidays and weekends” for the immediate issuing of a ruling stipulating the expulsion of any foreigner found to be “irregular”.

6 We can also cite Carolina Boe’s doctoral thesis, soon to be completed, on the resistance strategies of foreigners in detention.

7 The influence of security agents in the setting up of a common migratory policy is particularly evident in the orientation given to the Convention Implementing the Schengen Agreement signed in 1990 and devoted in its quasi-totality (141 articles out of a total of 142) to the adoption of measures destined to compensate for the “security deficit” that supposedly results from the liberty of movement proclaimed by the Schengen Agreement.

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Référence électronique

Nicolas Fischer et Mathilde Darley, « Managing immigration: Between an administration logic and a criminality logic », Champ pénal/Penal field [En ligne], Vol. VII | 2010, mis en ligne le 25 février 2011, consulté le 24 avril 2017. URL : http://champpenal.revues.org/8005 ; DOI : 10.4000/champpenal.8005

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Auteurs

Nicolas Fischer

Postdoctoral fellow (IRIS-EHESS, UMR 8156-997)

Mathilde Darley

Permanent researcher at the CNRS (CESDIP, UMR 8183)

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