Victim or Perpetrator? e Criminalization of Migration and the Idea of 'Harm' in the Labour Market Context

Abstract

This chapter provides powerful arguments against the criminalization of irregular migration. It does so by testing the extensive criminalization of irregular migrants against standard liberal principles of criminalization. The chapter argues that it is very difficult to identify any direct wrongs or harms to others that arise in virtue of ‘irregular’ migration. Furthermore, a malum prohibitum offence cannot be justified. Against these weak arguments in favour of criminalization, this chapter identifies compelling reasons against criminalization. Criminalization leads to further criminalization, which ultimately undermines both  migrants’ and local workers' fundamental rights. It also blocks discussion of one particularly worker-protective regulatory response to irregular migration, namely regularization. In truth, the criminalization of migrants represents a context where there has been a decisive rupture with liberal principles of criminalization.

Keywords: refugees, asylum seekers, migrants, work, criminalisation, criminal law theory, malum prohibitum, mala in se, regulatory crimes, criminalisation of migration, crimmigration