Title: Does crimmigration theory rest on a mistake?

Authors: Graham Hudson

Addresses: Department of Criminology, Ryerson University, 350 Victoria St., Toronto, ON M5B 2K3, Canada

Abstract: Crimmigration is said to involve the blurring or fusion of criminal and immigration law in such a way as to submit migrants to virtually unfettered executive power. Keen to demonstrate the basis of the state's constitutional obligations towards non-citizens, lawyers and academics argue that, despite legal form, a sub-set of immigration law is essentially criminal in nature. This rhetorical strategy makes an asset out of the tendency of judges to consider criminal consequences to be inherently more serious than immigration consequences. Yet, it risks conceding the premises of faulty doctrine, namely, that constitutional rights generally do not apply to immigration measures per se. This suggests that, at least in the realm of constitutional adjudication, the power of crimmigration lies in paradox: one must accept its underlying premises in order to challenge it. While lawyers (and their clients) in some sense must accept this doctrinal and discursive reality, crimmigration theorists are not so bound. This paper explores whether crimmigration theory rest on the mistake of conceding some of the ideological and doctrinal ills it seeks to remedy, and what conceptual resources may we draw on to side-step this problem.

Keywords: crimmigration; constitutional rights; punishment; due process; legal philosophy; moral philosophy.

DOI: 10.1504/IJMBS.2018.096768

International Journal of Migration and Border Studies, 2018 Vol.4 No.4, pp.303 - 325

Received: 20 Sep 2017
Accepted: 30 May 2018

Published online: 07 Dec 2018 *

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