Detention by sea, imprisonment by air : an analysis of the get-tough policy approach to the infringement of migration law in Malta

Abstract

This article contributes to existing theoretical and empirical work on the criminalisation of migration by examining elements of crimmigration within Maltese legal frameworks and Criminal Justice institutions and practices. Drawing on domestic legal provisions, processes and secondary data analysis of official immigration statistics by the three branches of criminal justice; the police, courts of justice, and the correctional system, the study sheds light on the treatment of immigration law violators in Malta with particular focus on the sanctions meted out by the Criminal Courts in the penalisation of these offences. Despite the fact that Malta has moved away from the automatic criminal prosecution of undocumented migrants who enter Malta irregularly by boat in search for asylum, it continues to formally criminalise and harshly penalise those who use fraudulent documentation in their attempt to enter or leave the country through formal channels of arrivals and departures. The harsh penalisation of migration law violations arising from the use of fraudulent travel documentation for asylum seeking purposes denotes that empowered through legal provisions and wide judicial discretion, the Maltese Criminal Courts of Justice adopt a get-tough punitive approach, typified by over-reliance of incarceration over community-based sanctions. Fuelled by populist rightist discourse, migration policy in Malta is becoming progressively characterised by crimmigration through the tighter intertwinement of criminal and migration law, furthering the criminalisation of migrants and asylum seekers. This carries significant ramifications on the socio-economic and politico-cultural spheres with huge moral and fiscal costs on both the macro-structural and micro-individual level. The excessive and blanket use of imprisonment for the violation of migration law infers the use of punishment as a form of symbolic politics and a spectacle of a get-tough policy approach offering rehabilitation and reintegration to the native insider, but retribution, deterrence and incapacitation to the non-native outsider, redolence of an institutionalised form of racism.