Even before Juliet Stumpf coined the term “Crimmigration” in her 2006 article The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, scholars were developing a steady flow of legal and empirical scholarship focusing on a sharper demarcation and a better understanding of crimmigration – or the merger of crime control and migration control. From its initial strong focus on understanding the legal ramifications of the growing convergence between criminal law and immigration law, over time, the scope of the scholarship widened. Until recently, the main ‘actors’ in crimmigration research were either state-agents such as border guards, immigration officials, the legislature, the police, etc., or migrant communities that were subjected to and affected by crimmigration. Recently, by building on the notion of ‘crimes of solidarity’, NGO’s and activists defending immigrant rights have been introduced as actors subjected to crimmigration.1
In their article Solidarity under siege: The crimmigration of activism(s) and protest against border control in Spain, López-Sala and Barbero are describing how, in Spain, repressive tactics are being employed against the state against various activists and immigrant-right initiatives. Their analysis paints a grim picture that unfortunately is illustrative of a European Union-wide development. In response to fears of mass migration to the European continent, many European states have formalized so-called crimes of solidarity, also referred to as ‘intolerable solidarity’. Interestingly enough, whereas this tendency in most European countries was sparked by the so-called 2015 ‘European Refugee Crisis’, the criminalization of activists in Spain predates the ‘crisis’ and is part of an earlier punitive turn that started about 30 years ago. As part of this punitive turn, (im)migration has been generically categorized as a source of ‘criminality’ that must be contained at the border and controlled within the territory.2 At the same time, rules were put in place to control and sometimes sanction various forms of social protest, as it was framed as a public disturbance.3 By tracing the legal history, the authors indeed paint a picture of an increasingly intolerant state that is putting various mechanisms in place to control (im)migration and to silence those protesting against the state’s laws and policies. These ‘gag’ laws seem to cover a range of criminal but mostly administrative measures, as the latter category requires far fewer guarantees for defendants, whereas police and the administration have certain privileges and can act with much greater discretion.
Applying a socio-legal approach, in which the authors combined document analysis with semi-structured interviews of activists from different social organizations and formal and informal networks, the article discusses three cases in which immigrant rights activists were explicitly targeted by the Spanish government. The three cases focus correspond with the different ‘faces’ of border control in Spain, and in Europe at large. One case addresses the internal borders, also known as the ‘Schengen borders,’ referring to the 1994 Schengen Agreement that did away with all forms of permanent border control at these internal borders. A second case discusses activism at Spain’s external border, which demarcates the frontier between Europe and Northern Africa (which, in turn, is part of the ‘Western Mediterranean Route’, stretching across the sea between Spain and Morocco). The last case revolves around the externalized Spanish border in Morocco.
The analysis of these three cases shows a wide array of repressive police tactics, administrative sanctions, and criminal prosecution that have been used to impede the work of defenders of immigrant rights. The authors distinguish between four levels of repression that activists in Spain are facing. As the authors write “This repression is multifaceted and variable and mutates depending on the influence of the activist as well as the limits imposed by the courts. In other words, the crimmigration of activists employs soft and hard coercion.” (P. 688.) The first level of repression are the ‘informal dissuasion’ practices, subtle actions and inactions carried out by the police, such as increased police presence, verbal threats of sanctions, coercion to delete pictures or videos, or failure on the part of the police to fulfill their obligations to protect these activists from harm. The objective of these practices is to pressure activists to stop their activity, but without opening formal proceedings (or leaving any evidence), either because their activity does not warrant such proceedings or because the tactics used to apply pressure are illegal. At the second level of repression there are the ‘formal dissuasion’ tactics, such as applying stop & search powers, carrying out ID checks, confiscating personal property or political material (protest signs or fliers), bringing charges (despite not initiating sanction proceedings), and detaining activists on the street or taking them into custody at the police station. Third are tactics labelled as ‘bureau-repression’ in which administrative sanction proceedings are formalized. As individuals are quite vulnerable in administrative proceedings, which allow varying degrees of coercion to be applied to activists, the authors note that these tactics are often an effective approach to dissuasion. The last level of repression is made up by criminal prosecution, which is the State’s last – but most coercive – resort. In Spain, activists can receive three months to a year of prison for helping someone migrate irregularly. The rationale behind these sentences is not only to punish individual activists, but also to have a preventative effect by discouraging other activists.
Among these various levels of repressive measures, the authors note that the informal tactics and bureaucratic repression are most common. The measures that fall within the scope of these tactics require very little procedural effort and can happen at any given time, thereby contributing to an overall sense of immigration and immigration activism surveillance. The fact that these tactics can also be done with impunity because of the limited – or, more accurately, absent – legal protection that activists have in these cases (particularly as compared to protections in administrative or criminal proceedings) only further fuels the use of such practices.
The article not only illustrates how grim the situation around immigration and border control has become in Europe, but it also fills a gap in the existing scholarship by analyzing the intersections between crimmigration and activism, focusing on the repression of migrant rights activists, particularly those monitoring border and internal control sites. In so doing, they contribute to a deeper and more complete understanding of the state’s approach to not only criminalize immigrants and to expand categories of outsiders, but to also target various categories of nationals by finding them guilty of helping fellow human beings and fighting for their rights. Their analysis emphasizes that the growing legal, bureaucratic, and police repression of solidarity with immigrants represents a new approach to irregular immigration and migration control tactics. They urge scholars to look not only at the formal tactics and state interventions, but also – or perhaps in particular – to the small and informal strategies utilized daily by the police.
- Liz Fekete, Europe: Crimes of Solidarity, 50 Race and Class 83 (2009); Liz Fekete, Frances Webber & Anya Edmond-Pettitt, Humanitarianism: The Unacceptable Face of Solidarity (2017).
- José Ángel Brandariz García & A. Iglesias, The Control of Irregular Migrants and the Criminal Law of the Enemy in Maria João Guia, Maartje van der Woude & Joanna van der Leun (eds), Social Control and Justice: Crimmigration in the Age of Fear 255 (2013).
- Pedro Oliver Olmo & Jesús-Carlos Urda Lozano, Bureau-Repression: Administrative Sanction and Social Control in Modern Spain, 5 Oñati Socio-Legal Series (2015), available on SSRN.