Monitoring Migrants or Criminals… or Both?

Post by Maartje van der Woude, Full Professor of Sociology of Law at The Van Vollenhoven Institute for Law, Governance, and Development and Associate Professor of Criminal Law at the Institute for Criminal Law & Criminology of Leiden University. This post is the third installment of Border Criminologies’ themed series on Decision-making in the Dutch Borderlands organised by Maartje.   

As a result of the current refugee crisis in Europe, the Mobile Security Monitor (MSM)―as carried out by the Royal Netherlands Marechaussee (RNM)―has attracted much attention. In the media the MSM is typically depicted as a form of permanent border control, a way to obstruct refugees wanting to enter the Netherlands. As I explain more elaborately in a previous blog, the MSM is supposed to be neither. Yet, in looking at the legal framework of the MSM as well as the policy discourse surrounding it, a lack of clarity seems to exist as to the exact goal of the MSM. As this blog post will illustrate, to a certain extent, a similar lack of clarity about the scope and aim of the MSM is also found among street-level RNM officials. Consequently, the MSM bears the risk of gradually transforming from an instrument of immigration control into an instrument of crimmigration control.

Schengen-proof Border Monitoring

The Dutch government was one of the first to sign and implement the Schengen agreement. It was also one of the first to introduce a form of police control in border areas. Article 21(a) of the Schengen Border Code (SBC) makes clear that lifting border controls doesn’t mean giving up all forms of control in border areas. The national police forces such as the border patrol still have the possibility of carrying out security controls in these areas subject to the conditions as described in the SBC and as long as these controls don’t have an effect equivalent to border checks. The exact conditions that have to be met for controls not to be veiled border checks were further specified by the Court of Justice for the EU in the cases Melki/Abdeli and Adil.

Expanding the Scope from Aliens to Security on the Policy Level

The easing of internal borders under the Schengen agreement had the Dutch parliament worried, not only because of immigration issues, but also because of concerns over cross-border crime. The latter was a reason for some politicians to call upon the supporting role of the RNM and to introduce the Mobile Aliens Monitor. The original goal of this Monitor, as stated in a 1994 letter of the State Secretary, was ‘(…) to prevent illegal entry and irregular stay of aliens.’ The Monitor was seen as an important tool for stopping unwanted immigrants at the border and discouraging prospective immigrants from coming to the Netherlands without legal authorization. Besides addressing illegal migration to the Netherlands, combating two specific forms of ‘immigration related crimes’―human trafficking and identity fraud―also fell under the formal and legal scope of the MSM. Whereas the MSM was clearly predominantly meant as an instrument of immigration control, over time, crime control gradually gained importance. This even led to a name change in 2010 as the Mobile Aliens Monitor was renamed the Mobile Security Monitor. The reason for this decision was addressed in a letter from the Minister of Immigration, Integration and Asylum in which the Minister explained that since RNM officials often encountered criminal offences―other than human trafficking and identity fraud―during the MSM, it had to be made clear that the MSM was not only an important tool for immigration purposes, but also for combating crime. It was therefore deemed necessary to bring both the name and the official goal more in line with the actual practice: ‘The goal of the Mobile Security Monitor is to combat irregular immigration and certain forms of cross-border crime.’ With the legal foundation of the MSM still soundly rooted in immigration law, the MSM’s expanded focus on security seems to be another example of the securitization of migration as it is visible throughout Europe.

Confusion on the Street-level

During both the ride-alongs and focus group interviews for our research project, different opinions were expressed in regard to how individual border patrol officers perceived their duties and the exact focus and aim of the MSM. Whereas everyone mentioned combating illegal migration, a majority of the respondents also explicitly mentioned combating cross-border crime or migration-related crime. The additional focus on cross-border crime was always explained by referring to the name change from Mobile Aliens Monitor to Mobile Security Monitor. One officer summarizes what many of his colleagues think of the name change:

Well it used to be Mobile Aliens Monitor, but the Royal Netherlands Marechaussee has changed this into Mobile Security Monitor, which implies that they also want us to combat cross border crime and not just to focus on the illegal immigrants.

It became clear, however, that there are different opinions on what crimes fall under the category of relevant ‘cross-border’ crime. While some, in line with the law, referred only to human trafficking and identity fraud, most officers immediately added drug trafficking, money-laundering, and possession of illegal weapons to the list. Although RNM officials have the authority to arrest someone in possession of drugs or weapons if they come across either one while checking a person or a car under the MSM, they aren’t allowed to ‘misuse’ their power to stop cars under the MSM to actively seek for weapons or drugs. This would be crime control and the MSM is an instrument of immigration control. The latter is still the case under the new name of the monitor since the name change hasn’t resulted in changes in the legal foundation of the MSM. So basically, predominantly using the MSM as an instrument of crime control could be considered a case of détournement de pouvoir―the intentional misuse of powers. As one RNM officer states:

In the early 90s it was clear that we could only use the powers attributed to us by the Immigration Act, but the goal at the time was to combat illegal immigration. 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.

The Securitization of Migration Control?  

This brief insight into some of the street-level experiences and perceptions indicates that there is confusion about the exact scope of the MSM: Is it a means to combat illegal immigration or a means to combat crime? And if so, what forms of crime? Perhaps it’s both? The ambiguity of the MSM’s scope and aim is concerning. As a result of the securitization of migration, the general public seems increasingly unable to make the distinction among different types of migration and different types of migrants. This inability can lead to the dangerous generalization that each migrant constitutes a potential security threat. From this perspective, the expansion of the MSM might be worrying: To what extent are RNM officials made aware of the fact that although migration control and crime control can be related, this doesn’t necessarily have to be the case, particularly as the ostensibly insignificant name change seems to have had a great effect on the ways in which people―in our case RNM officials―interpret and justify the use of their powers. This should clearly be a focal point for the RNM.

Border zones, and those entering and exiting them, remain interesting yet problematic areas, both for researchers and law enforcement organizations but also for policy-makers. In finding a balance between respecting open borders, monitoring migration, and protecting national security, the Netherlands is one of the only countries in the EU that has regulated their Schengen-proof police checks through national legislation and policies. Although our research shows there is clearly room for improvement, the mere existence of a formal legal framework enables mechanisms for accountability and monitoring street-level decision making. That way one can monitor whether border practices are unjustly affected by the ongoing securitization of migration and the extent to which this results in illegitimate decision making. The European Commission has strengthened the system through which it monitors if and how member countries uphold the Schengen acquis. However, it remains to be seen how this works when countries have not (fully) formally regulated their border practices and when countries are not too keen on granting external researchers access to the organizations involved in migration control. The current refugee crisis and the often heard questions ‘How is this possible?’ and ‘How did we get this far?’ are clear markers of the fact that migration control decision-making on the EU, the Member State, and the street levels have been shielded from public scrutiny for far too long.

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How to cite this blog post (Harvard style):

van der Woude, M. (2016) Monitoring Migrants or Criminals… or Both? Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2016/02/monitoring (Accessed [date]).