Book review: The Treatment of Immigrants in the European Court of Human Rights: Moving Beyond Criminalisation

Guest post by Ettore Asoni. Ettore holds a PhD in Geography from San Diego State University and University of California, Santa Barbara. His dissertation examines US immigration law and immigration detention from a legal-geographic perspective. His current work draws from legal geography and carceral geography to analyze the territorial dynamics that underpin regimes of (im)mobility, and especially across systems of immigration control in the European region. He is originally from Sardinia, Italy. Ettore is on Twitter, @ettoreasoni.

Review of The Treatment of Immigrants in the European Court of Human Rights: Moving Beyond Criminalisation, by Amanda Spalding (Bloomsbury, 2022).

Across the last three decades, European states have transitioned toward models of immigration control that favor the usage of highly punitive measures against noncitizens within their borders. The result has been a peculiar convergence between criminal and immigration law, where the very condition of being a migrant has been criminalized across Europe. In her new book, Amanda Spalding examines this phenomenon from the perspective of the European Court of Human Rights (ECtHR), and she demonstrates how the court has generally failed to prevent its Member States from restricting the rights of immigrants to a dangerous extent.
Importantly, Spalding does not analyze the “criminalization” of migration in general terms. Instead, she focuses on a very specific aspect of the phenomenon, and one which she argues has been understudied in the literature: the disparity between criminal law and immigration law in terms of the protections available to people caught up in the two systems. Spalding argues that to interpret immigration control in Europe through the concepts of “criminalization,” or “crimmigration,” is imprecise. This is because while immigrants face restrictions and measures drawn from criminal law, they do not enjoy the same fundamental protections that are available to criminal defendants. In this sense, the “criminalization” advances along a process of “undercriminalization,” where the protections that are normally associated to punitive measures under criminal law are not equally transferred.

While the topic is narrow and highly technical, the implications are enormous. By sanctioning the principle that immigrants can face punitive measures without adequate protections, the ECtHR has effectively constructed a “two-tier system” of human rights, where human rights are applied and interpreted to offer a lesser protection in immigration cases than other contexts. This has entrenched and normalized discrimination against noncitizens, thus undermining the universalistic principles supporting the European Convention on Human Rights (ECHR).

The clarity of the structure is one of the book’s major strengths. After the introduction, Spalding examines four different articles that enshrine separate rights under the ECHR. Each article takes up a chapter, where Spalding first analyzes the article’s application to contexts other than immigration, and then follows with a comparison that demonstrates the existence of an inconsistency in the case law.
The second chapter concerns the right to liberty under Art. 5, and its application to immigration detention; the third chapter focuses on the right to a fair trial under Art. 6, and its (in)application to deportation cases; the fourth chapter again examines Art.6, but its application to the restriction of civil and political rights (the civil limb of Art. 6); and finally, the fifth chapter discusses the right against torture and inhumane treatment under Art. 3, and its application to deportation cases.
The final chapter sums up the finding and advocates for change. Spalding argues that both internal and external voices to the Court have criticized its approach to immigration cases, sometimes successfully. Thus, the Court’s decisions on these matters are not final, and there should be efforts to invert this trajectory and deviate from the two-tier model in favor of a less discriminatory approach under the ECHR.

In sum, the book provides an intelligent and thoughtful analysis of its topic that supports the overarching argument: the court’s current approach to immigration cases is rooted in a judicial philosophy that undermines human rights, and which bolster the Member States’ ability to use punitive measures outside the limits of criminal law.

When writing this review, I am mindful of the interdisciplinary audience of this blog. The book’s audience of choice is obviously lawyers and legal scholars, and especially those working on immigration control and/or preventive justice. Both scholars and students would undoubtedly appreciate the clarity of Spalding’s analysis and the cogency of her arguments, which constitute a precious addition to research at the intersection of human rights and criminal law, and not just in the immigration context.

On the other hand, non-legal scholars may be less interested in dwelling over the long case analyses that make up the backbone of this work. However, the book could work as a useful reference point for those wishing to develop a clearer understanding of current trends concerning immigration control in Europe, and particularly on the topics of immigration detention and deportation. The analysis could appeal scholars wishing to get a better grasp of the legal dimension of these topics, even when not directly working on law.
Furthermore, because of its topic, the book touches two issues that are crucial across different disciplines. First, the tension between the universalism of human rights and the inevitable discrimination against noncitizens in the nation state, and how it unfolds across European states. Second, the boundary separating punishment from prevention, and the very definition of punishment as a philosophical and judicial category in liberal legal systems. When is a punishment not punishment, who decides and on what grounds?

Ultimately, how much scholars working on these topics could draw from the book lies in their propensity to confront case analysis. The book itself does not dwell much over theory, but its arguments are inevitably tied to political debates spanning beyond the judicial decisions of the ECtHR.

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