Ensuring public safety and order as a justification for the criminalisation of migration

Project funded by NCN, carried out from 15 January 2018 to 14 January 2021.

General information

The observed practice of incorporating criminal law instruments into migration law by criminalising certain behaviours that are typical of migration and using criminal law institutions (such as deprivation of liberty or employing preventive measures) as new strategies to control migrants is called “criminalisation of migration” (crimmigration).

Most of the laws and practices that are included in this concept are introduced, according to the declarations of the authors of the changes, in order to protect the security of the state and its citizens. Such justification of legislative changes or practices requires in-depth criminological analysis.

Project objectives

The aim of the project is to assess to what extent the new legal institutions introduced in Poland in order to increase control over migrants live up to expectations and whether extensive use of criminal law instruments in migration law can contribute to increased public security.

The subject of the study will be selected manifestations of the criminalisation of migration, in particular the use of isolation and non-custodial protective measures against migrants, i.e. detention and alternative instruments (such as the obligation to report to a specific place or financial collateral), as well as the effects of criminalisation of facilitating illegal stay of foreigners on the territory of Poland (Article 264a of the Penal Code).

Apart from the study on the genesis and functioning of selected provisions, the project will also include a qualitative study on the perception of practitioners and foreigners of the application of security measures adopted from criminal law in administrative procedures. The research will be carried out in the perspective of global theoretical legacy mainly in the field of criminalisation of migration, as well as penal populism, moral panic, and increasing control over societies.

This theoretical framework will be used to explain the origins of the changes in the Polish migration law that fall under the notion of criminalisation of migration and to determine the effects of the changes in law and practice, including the degree to which the introduction of criminal law instruments into the migration law contributes to increased security and public order or limits undesired migration movements and to what degree it meets human rights standards.

The analysis will cover the provisions and their application practice in Poland after 2003, but with a special focus on the situation after 2015, i.e. after the escalation of the so-called migration crisis in Europe and increasing fears of terrorist threats.

Importance of research for the development of legal practice

The project will use qualitative and quantitative research techniques, and will apply triangulation in terms of research methods and sources used. The proposed study includes:

1. analysis of available Polish and foreign literature and other existing sources;
2. analysis of administrative and criminal law provisions on increasing control over migrants as well as the justifications given for their introduction and the socio-political context of their introduction;
3. comparative analysis of the criminalisation of migration-related behaviour, i.e. the introduction of new categories of offences whose perpetrators can only be migrants or persons involved in the organisation of migration;
4. examination of criminal case files on convictions for the crime under Article 264a of the Penal Code, i.e. facilitating illegal stay of foreigners on the territory of Poland;
5. examination of the grounds for and the lawfulness of detention, i.e. placing foreigners in guarded centres for foreigners, as well as the adjudication of measures alternative to detention (the analysis will be based on the files of court proceedings on placing foreigners in detention);
6. analysis of available statistical data on the use of detention and quantitative data obtained from file research;
7. examination of the perception of isolation and non-isolation security measures used against foreigners and their effectiveness by representatives of institutions involved in the use of these measures: courts, Border Guard and social organisations (30 in-depth expert interviews);
8. analysis of the perception of alternative measures by foreigners who were or are subject to such measures under the return or asylum procedure (40 in-depth individual interviews with foreigners).

Importance of the study for the development of legal practice

Undertaking research on the criminalisation of migration is important for at least two reasons. Firstly, it is necessary to initiate a discussion on migration control: its image and effects in the Polish literature (both criminological, legal and migration literature). This is important in view of the growing interest in migration in the Polish public debate, the increasing scale of migration and the expansion of migration legislation to put migrants under tighter control, especially between 2015 and 2017.

Secondly, in view of the dominance of the Anglo-Saxon perspective in international literature (mainly from the United Kingdom and the United States), it is important for Polish researchers to take the floor in the discourse on the criminalisation of migration, which, however, requires comprehensive, so far unconducted, research on the genesis and effects of introducing criminal law solutions to the migration law in a country with a different migration history than the countries of Western or Southern Europe (Poland is more and more often a destination country, but not necessarily in connection with the so-called migration crisis) and the real impact of these changes on ensuring state security and public order.

Head: Witold Klaus, PhD, Prof. INP PAN