That also includes catching folks who are dangerous due to carrying weapons or drugs across the border.
When this legal limitation was mentioned by the moderator, respondents would often start questioning whether this limitation was legitimate and effective in their eyes. These discussions would in the end always come back to the name change from Mobile Aliens Monitor to Mobile Security Monitor.
Over time, society has changed, crime has changed and they changed the name into Mobile Security Monitor and much more priority was given to catching criminal illegal immigrants. During every focus group, respondents mentioned that the name change resulted in some confusion at the street level.
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Although the majority of the respondents were very aware of the fact that the name change had not formally resulted in an expansion of their discretionary powers, a small portion of the respondents was not. They were under the impression that the MSM could be used as a fully fledged instrument of crime control after the name change and that it was no longer restricted to human smuggling and identity fraud. Interestingly enough, all the respondents thought it necessary to indeed expand the legal framework of the MSM to all forms of cross-border crime, since that would be more in line with their daily practices and with the image of the MSM as presented to the general public.
Immigration, Detention, and the Expansion of Penal Power in the United Kingdom | SpringerLink
Many respondents expressed feelings of frustration with regard to the current state of their powers. Two respondents aptly capture the broadly shared feelings of frustration and incomprehension:. Officially, your hands are tied because their IDs and paperwork were fine.
Under these circumstances, the Aliens Act forces you to let them go. But the thing is, you are standing there to secure the safety of the Netherlands. With that in mind, it is strange that you are legally restricted from fully checking a car. The frustration about the ambiguous aim of the MSM also contributed to the noteworthy situation of RNM officials actively exploring the boundaries of the legal framework. As many respondents stated, although the name change had not resulted in an expansion of the legal framework, it seemed to imply that this was something to which the RNM as an organization aspired.
Several RNM officials — also including some higher ranked officers — expressed the necessity of seeking out the limits of the law in order to create case law that could eventually lead to more clarity about the implications of the name change for street-level decision-making.
This situation, where there seems to be a push from the street level to the policy level to make legal potentially illegal practices that are part of the system Davis, , is characteristic of rule-binding discretion. And, as we established in the previous subsection, the discretionary space created by the Dutch legislature allowing RNM officials to rather autonomously decide which cars to stop and check can be characterized as such. From a crimmigration perspective it is important to note the ease with which immigration and crime were being lumped together in the focus group interviews, even by those respondents who were well aware of the fact that the MSM was formally predominantly meant to combat unauthorized stay in the Netherlands.
According to the large majority of the respondents, the presence of the RNM in the border areas was of great importance in current times of mass migration and terrorism. With some exceptions, the dominant discourse around the MSM was clearly a discourse of safety and security in which immigration was seen as a factor potentially threatening security. As Van der Woude et al. This article has sought to shed light on the influence of discretionary decisions on the process of crimmigration, by distinguishing between discretionary decisions taken on various levels and by different actors.
The often heard claim or assumption that street-level officials are the most important drivers in the crimmigration process has not been empirically verified in the case of the Netherlands. Our study suggests that the culprits in the merger of crime control and migration control are to be found in the upper echelons of criminal justice decision-making. Based on the outcomes of this study, Type B decisions made at both the European and the national level seem to play a more important role in the process of crimmigration than Type A — street-level — decisions by RNM officials.
By leaving much room for interpretation of the legal framework — both for member states on how to translate the Schengen Borders Code into their national legislation and for RNM officials on how to interpret the national legal framework of the MSM — favorable conditions are created for crimmigration practices. This is especially the case since Dutch RNM officials are by law equipped with both immigration control and specific crime control powers while enforcing the MSM.
Although the use of their crime control powers is formally limited to specific situations, the joint political and organizational — Type B — decision to change the name of the Monitor has suggested a broader application. As the empirical research has shown, this leads to confusion and sometimes frustration at the street level. RNM officials increasingly seem to focus on crime control while they are performing the MSM and they feel legitimized to do so by the name change, which also seems to have fueled existing perceptions of the links between crime and migration.
They also perceive a large amount of discretionary space while enforcing the RNM in a crime- and immigration-oriented manner. At the same time, it should be realized that there can be a gap between what people say — during interviews — and what people do in practice. In order to truly grasp the way in which RNM officials enforce their discretionary powers and how this might contribute to the practice of crimmigration, it is necessary to observe their decision-making processes over a long period of time, which is another part of our study that is not reported on here.
The borders of punishment : migration, citizenship, and social exclusion
Nevertheless, our findings indicate that the implicit or explicit claim that street-level officials are the most important drivers in crimmigration needs to be nuanced. Owing to the formulation of open norms on the supranational and national levels, discretionary space is consciously introduced into the decision-making scheme governing the MSM.
Time limitations do not fundamentally limit this space. Although the discretionary decisions most visibly reflecting crimmigration practices might be taken on the street level, the foundation for these decisions was laid on higher legislative and policy levels. In order to more thoroughly unravel the process of crimmigration, an interdisciplinary holistic multi-level approach is thus necessary. Focusing on one actor and ignoring the social and political context within which crimmigration decisions are made will by definition lead to an incomplete analysis of the process of crimmigration and its drivers.
Nevertheless, there are always additional questions to explore. As mentioned in previously, the national legislature has created discretionary space for RNM officials to select which cars to stop for an MSM check. In the context of further disentangling the process of crimmigration, it is precisely this decision that needs further scrutiny. It would be relevant to investigate to what extent border police officers see parallels between the people they would stop from an immigration point of view and those they would stop from a criminal law point of view.
Katja Franko Aas and Mary Bosworth
In other words, to what extent are some immigrant groups in practice also associated with certain forms of cross-border crime? Another open question concerns the effectiveness of these strategies when it comes to crime control. What is the added value of border area policing in combating migration crimes?
The latter question requires a quantitative and potentially semi-experimental research design, which was not feasible in the context of the existing study. The outcomes of the present study have implications for the European Project. One could argue that the mere possibility of performing immigration checks in border areas is already questionable from the perspective of free movement, which can be seen as the core characteristic of the EU.
Surely, the frequency and intensity of these checks have been limited as a result of the rulings of the CJEU, but member states still enjoy a great amount of discretion on how to translate the Schengen Borders Code into their national legislation. And since the SBC is rather vague on the exact nature of these checks, member states can deal with them creatively. Although the European Commission announced stricter checks on the implementation and enforcement of EU legislation on the member state level in the Schengen Governance Package, it remains to be seen what this actually means in practice.
In the light of the present influx of immigrants through the southern and eastern external borders of the EU and the difficult political process with respect to more fundamental harmonization and burden-sharing with respect to asylum seekers, it is to be expected that member states — especially those in Western Europe — will seek out all options to somehow manage or at least monitor who is entering through the border areas of their nation states Van der Woude and Van Berlo, Terrorist threats and attacks, including the recent ones in France, add to the urgency that is felt in this respect.
Although the original promise of creating a borderless Europe within which crossing a land border should be as easy as crossing a municipal border sounded good, it has proven to be too good to be true. Security concerns are crucial, but the implications of the increasing merger of crime and migration control across Europe deserve attention that goes further than solely looking at street-level decisions. We would like to thank Vanessa Barker, Sara Casella Colombeau and the two anonymous reviewers for their comments on previous versions of this article.
The project was initiated and is coordinated by Maartje van der Woude, and the dissertations resulting from the project are co-supervised with Joanne van der Leun. Mr Melki and Mr Abdeli, two Algerian nationals who were unlawfully present in France, were subject to a French police control near the Belgian border and placed in administrative detention. Inter alia they pleaded that the provisions of the French Code of Criminal Procedure in the context of which such controls took place was unconstitutional.
Mr Adil, an Afghan national, was stopped on 28 March by the RNM in the course of an MSM check when traveling on a bus coming from Germany, in the area extending up to 20 kilometers from the land border of the Netherlands with Germany.
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By a decision of 28 March , Mr Adil was placed in administrative detention. Mr Adil contested the lawfulness of his detention on the ground that the MTV check, to which he was subject, amounted to a border check and was, therefore, contrary to Regulation EC No. It hears appeals lodged by members of the public or companies against administrative decisions or orders given by municipal, provincial, or central governments. Being part of administrative law as well, decisions or orders based on the Aliens Act or the Aliens Decree also fall within the jurisdiction of the Council of State.
National Center for Biotechnology Information , U. European Journal of Criminology. Eur J Criminol. Published online Jan Maartje van der Woude and Joanne van der Leun. Author information Copyright and License information Disclaimer. Email: ln. Abstract Internal borders are a major but understudied site of crimmigration as most scholarship has focused on external borders Van der Woude and Van Berlo, Keywords: Crimmigration, decision-making, discretion, European Union, immigration control, internal borders.
Central focus and scope This article will argue that a multi-actor assessment of discretionary decision-making, including also discretionary decisions made on the legislative and policy level Schneider, can contribute to a better understanding of the implementation of crimmigration. Conceptualizing discretion As a result of fundamental changes in the nature of modern society, the state is called upon to intervene in many areas of social life and the issues that have to be grappled with are inherently complex Beck, ; Giddens, ; Prosser, ; Unger, Methodology The present study uses a mixed methods research design, combining a policy discourse analysis, informal interviews held during ride-alongs with the border police , and semi-structured focus group interviews.
Discretionary decisions and the implementation of crimmigration Based on secondary research of the legal and policy context of immigration and border control as well as on primary empirical research with regard to the way in which Dutch border patrol officers perceive their task and their discretionary space, this section aims to shed further light on the way in which the various levels of discretionary decision-making relate to each other at both the national and the European the supranational level.
Creating discretionary space on the European level When researching immigration controls carried out in the border areas between EU member states, the point of departure for exploring discretionary decisions that might have contributed to the process of crimmigration is obviously the Schengen Agreement.
Creating discretionary space on the national level The Dutch government was one of the first to sign and implement the Schengen Agreement, yet it was also one of the first to introduce a form of police control in the border areas. Street-level perceptions of discretionary decision-making in border areas The previous two subsections have dealt with decisions taken on the legislative and policy level that create discretion for street-level RNM officials.
Acknowledgments We would like to thank Vanessa Barker, Sara Casella Colombeau and the two anonymous reviewers for their comments on previous versions of this article.
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Notes 1. References Aas KF. Theoretical Criminology 15 3 : — Aas KF. Oxford: Oxford University Press, 21— Aliverti A. Theoretical Criminology 16 4 : — Barker V. Sociology Compass 6 2 : — Oxford: Oxford University Press, — Beck U. Towards a New Modernity. London: Sage.
Bosworth M. Bosworth M, Guild M. British Journal of Criminology 48 6 : — Bourbeau P. London: Routledge. Bushway SD, Forst B. Justice Quarterly 30 2 : — Columbia Law Review : — Journal of Criminal Law and Criminology 3 : — Davis KC. Chicago: University of Illinois. International Journal for Migration and Border Studies. Eagly I. Emerson RM.