Foreign nationals, enemy penology and the criminal justice system

Abstract

In recent years, European governments have introduced a series of measures aimed at clamping down on foreign nationals within criminal justice systems. Such measures have included policies of automatic deportation on completion of prison sentences of a certain length, harsher sentencing, prison segregation, and restrictions on access to citizenship and rights to permanent settlement. This article argues that such measures constitute a separate criminal justice system for foreign nationals, the creation of which has been driven by ‘penal populism and racist campaigns by extreme-Right political parties, against Muslims, asylum seekers and Roma in particular. Many of those designated as foreign criminals are guilty only of new offences specifically created to criminalise undocumented migration; many others are young refugees who have never been helped to deal with the trauma they experienced in their countries of origin. Historically, the European Court of Human Rights has set a high threshold for the deportation of a foreign national following a conviction, particularly with regard to young people. But this has been bypassed by European governments, even in cases of‘virtual nationals , those born and brought up in a European country but, owing to jus sanguinis citizenship laws in some EU countries, holding a non-EU passport. Moreover, there are attempts to curtail the freedom of movement rights of EU citizens, such as Romanian Roma, on the grounds that they are a serious threat to public order.

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