Post by Ana Aliverti, Lecturer in Law at the University of Warwick.

For some time, a number of criminologists and criminal justice scholars have noticed a marked change in the way criminal justice systems in various countries operate. These changes have been geared by the increased diversity of the population they serve, and by border control policies and practices. In the UK, the police increasingly work alongside immigration officers to ascertain detainees’ identity and status, and to channel them through the immigration or the criminal justice system. In the last decade, the prison estate has been substantially restructured to facilitate the sorting of foreigners due to be deported and to adapt their prison conditions to the looming departure. A growing immigration detention estate operates on the receiving end of the criminal justice system, pulling together unwanted foreigners filtered out by its institutions.   

Birmingham Crown Court (Image: © Birmingham Mail)

The criminal courts have not been entirely isolated from the incursion of globalisation, mass migration, and its control in the courtrooms. In my recent work I explore how the presence of the ‘foreign national’ in the courthouse is substantially altering the goals, practices, and actors of criminal justice institutions. The chosen research site, the criminal courts in Birmingham, mirrors the diversity of the broader population. A city forged by successive immigration waves, Birmingham currently stands as one of the most diverse cities in the country, second only to London. According to the last population census, Birmingham residents are less likely to be born in the UK, speak English as their main language, and be white British than the national average in England and Wales.

Inside the courts, interpreters are required daily to assist witnesses, and to translate statements and official documents. They have become familiar actors to the point that the architecture of the courtroom and the pace of proceedings need to be adapted to accommodate them. The courts’ clientele is made of people whose identities aren’t ‘locked’ or ‘fixed.’ Court staff and practitioners are at pains to recognise that sometimes they don’t know who is in front of them. ‘Sometimes it is quite difficult to gauge the status of the individuals we represent,’ a solicitor moaned. ‘Sometimes it’s impossible frankly. To trace people’s identity, court staff often resort to immigration staff. An immigration probation officer relayed: If... there is a concern over the immigration status, if it is not confirmed, if there is a doubt over nationality, the basis for their stay in the UK, then we are expected to contact the immigration enforcement unit as a standard course.’

Immigration enforcement staff and facilities are often alluded to during criminal proceedings, in particular when defendants lack regular immigration status―and this is known to the court―and/or they are liable to be deported. In one of the cases observed involving a Vietnamese man who entered the country in the back of a lorry and was charged with growing cannabis plants, the lawyer didn’t request bail on behalf of his client: ‘If [he is] granted bail, he won’t be released, [he] will be detained in an immigration centre. And bail [is] unlikely to succeed.’ In another case involving another Vietnamese man charged with driving offences, a breach of bail, and an assault, the judge refused to pass a suspended sentence upon his guilty plea. In his sentencing remarks, he added: ‘You have an uncertain future here, but I can’t deal with it,’ hinting at his immigration status and potential forced departure. Before appearing in court, the defendant was briefly detained at Dungavel House, the Scottish removal centre, from which he was later released. His application for leave was pending, but since he was given a fourteen month imprisonment term he automatically qualified for deportation under section 32 of the UK Borders Act 2007.      

(Image: © Birmingham Post)

While prosecutors, magistrates, and judges were adamant to emphasise that the defendant’s nationality and immigration status have no impact on their decisions, the shadow of deportation surfaced in some of the cases observed as an important consideration in the criminal proceeding. A prosecutor working at the magistrates’ court mentioned that defence lawyers often bring up their clients’ deportability to request a non-custodial sentence, reasoning that if they are due to be deported, ‘there’s no point in sending [them] to prison.’ Yet, she also acknowledged that since the end result (deportation) is uncertain, prosecutors don’t generally factor it in in their decision to prosecute: ‘[the defendant’s deportation is] dealt with so separately, and there’s never really any guarantee that someone is going to be deported. If the police say to us, “he’s probably going to be deported,” I think we just proceed on the basis that they’re not because we never really have that concrete information that they’re going to be.’ Even if judges appreciated this uncertainty, some of them consider deportability as a bar to a non-custodial sentence. As a Crown Court judge explained, ‘you couldn’t make them subject to probation because they might be deported. So you are restricted to saying “I will give this individual nine months imprisonment and then the Home Office can decide whether they are going to deport him or her.”’

As these instances show, the appearance of the ‘foreign national’ in the vernacular court unsettles its everyday routines and taken-for-granted assumptions about its regular clientele. On a daily basis, the criminal justice system deals with people whose identity cannot be tracked down and whose fate lies on decisions made elsewhere. Adjudicating guilt in these conditions is inexorably surrounded by uncertainty. The significance of migration status and its utilisation by court staff and practitioners reveal a distinctive vector of stratification within the criminal justice process which has been barely considered by criminal justice and criminology scholars. In an age of mass mobility, apportioning guilt and punishment is inescapably linked to identity.

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How to cite this blog post (Harvard style):

Aliverti, A. (2016) Foreign Nationals Before the Criminal Courts. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2016/02/foreign-nationals.