Extraterritorial immigration control, preventive justice and the rule of law in turbulent times: lessons from the anti-smuggling crusade

Abstract

Extraterritorial immigration control has been increasingly used by states aiming to deflect and prevent flows of migrants and asylum seekers towards their territory. The growing securitisation of migration and asylum flows has led to the proliferation of mechanisms of extraterritorial immigration control, with new responses devised in times of perceived crisis. By focusing primarily on European responses, the aim of this chapter is to offer a typology of mechanisms of extraterritorial immigration control and to map their evolution taking in particular into account new responses prompted by the emergence in the global securitisation agenda of the fight against human smuggling as a primary security threat. The chapter will begin by an analysis of extraterritorial immigration control by states, as complemented in the case of the European Union by the activities of Frontex. It will focus on two aspects of extraterritorial immigration control closely linked with the fight against human smuggling: the privatisation of extraterritorial immigration control by criminalising and policing humanitarianism, and the militarisation of extraterritorial immigration control with endeavours such as Operation Sophia. The chapter will place these developments within a multi-layered, interconnected framework of extraterritorial immigration control which extends to cooperative arrangements between the EU and its member state son the one hand and third countries on the other. The chapter will demonstrate that the many levels of extraterritorial immigration control represent an emerging paradigm of preventive justice, by focusing on the prevention of entry of migrants and refugees in the territory and its member states. The chapter will also demonstrate how, in this paradigm of preventive justice, the rule of law is undermined.