Enforcing Borders

Overview: The punishment system acts as a tool to enforce Germany’s violent anti-migrant policies. Criminal courts routinely presume “flight risk” for non-citizens, leading to long periods of pre-trial detention, and some judges even pressure defendants to leave the country. While we stress that racism in court can not be reduced to instances of discrimination, we repeatedly observe how anti-migrant prejudice evidently inflects judges’ interpretations of witness statements, as they pass character judgments on migrantized defendants for not learning German, question people’s claims to asylum, or accuse them of fraud. As migrantized people face systemic racism in the punishment system, criminal convictions can put their residency status at risk.¹ Convictions also fuel racist myths about “criminal migrants”, which politicians exploit to further justify dispossessing and depriving migrantized groups—first among them often those who are criminalized.

Across the political spectrum, decision-makers in Germany are in agreement that migration must be combatted. Even though this is not a new development, considering that asylum rights have been under attack by parties of the right and center for decades, recent months have once again brought a surge of ever more restrictive asylum laws. Within a span of weeks in August and September 2024, the government agreed on a proposal to scale back social benefits for non-EU migrants, reinstituted deportations to Afghanistan, and decided to expand imprisonment and refusal of entry at German borders.² These are just some of the latest examples of a long ongoing, large-scale attack on the fundamental rights of migrantized populations, which extends internationally. In April, the European Parliament passed reforms to the Common European Asylum System (CEAS), expanding inhumane fast-track proceedings and the incarceration of asylum seekers, including children.³

Anti-migrant policies such as these are meant to act as deterrents.⁴ They aim to make life harder for people who have decided that they can no longer live in their home country. Reasons for migration vary from person to person and context to context, but making such a momentous decision is often motivated by existential hardship—due, for example, to war, famine, climate catastrophe, or a lack of access to essential goods and services, including medication and medical treatment or other material resources necessary for survival.⁵ The worldwide distribution of material resources for people’s survival is shaped by the systemic forces of global capitalism. Put simply: The relative wealth of countries in the Global North depends on the exploitation of labor and the extraction of resources from the Global South—a relationship deeply rooted in the history and legacies of European colonialism.⁶ This means that the same structural conditions that render many people’s home countries unlivable are, in fact, what makes countries such as Germany so eminently livable and attractive to migrantized populations. At the same time, neoliberal globalization has led to the rise of a global informal working class at the very edges, or completely outside the system of global capitalism—so-called “surplus populations”, whose presence is concentrated in, though not limited to, the Global South.⁷

While relatively privileged migrants from wealthy countries face fewer obstacles in coming to Germany, anti-migrant policies aim to make conditions less attractive for a specific class of migrants: precarious and informal workers from the Global South. Politicians exploit anxieties among (though not limited to) the German working-class about competition for resources and cultural change to serve multiple purposes: it deflects attention from how global capitalism creates precarity for both migrants and citizens; it provides a simple explanation for complex social problems; and it helps justify increasingly harsh border and immigration policies. By constructing these migrants as culturally “incommensurable” and as threats to security and social services, politicians can present deportation and criminalization as solutions to economic and social insecurity, while maintaining a system that depends on exploitable migrant labor and manages racialized surplus populations.⁸ The state enlists the criminal legal system as a key mechanism in this process, using it to enforce borders beyond their physical form and to manage populations through criminalization.⁹

Under increasingly hostile conditions, large numbers of racialized migrants in Germany are routinely criminalized and end up in criminal courts. In our courtwatching, we see how courts act as a continuation of the country’s deterrence and close-door policies, enforcing borders by means of the criminal law. Many migrants who end up in court have already spent months in jail, before their case is even heard.¹⁰ This is because courts often presume “flight risk”, which leads to people without German citizenship accounting for 60 percent of the people held in pretrial detention.¹¹ At times, judges use the threat of prison to pressure defendants into leaving the country.¹² In other instances, anti-migrant prejudice evidently inflects judges’ interpretations of witness statements, as they pass character judgments on migrantized defendants for not learning German, question people’s claims to asylum, or accuse them of fraud.¹³

Practices like racial profiling—especially in the form of “hotspot” logics, where police label areas with high densities of working class and working poor migrant populations as so-called “crime hotspots”—can also be viewed through the lens of enforcing borders:¹⁴ Not only does law enforcement specifically target racialized and migrantized communities; their targets are often barred from participation in the formal economy through the withholding of work permits, which can produce dependence on extralegal sources of income.¹⁵ This means that the criminalization of migrants is deeply connected to the criminalization of poverty. The systematic restriction of migrants’ access to material resources enables the disproportionate policing and punishment of migrant populations to appear justified on grounds of “crime control”, when what is actually happening is that criminalization acts as a form of migration control. Through fines and other forms of punishment, this criminalization further contributes to the dispossession of migrants.

Punishment by the criminal legal system also poses a severe threat for many migrantized people’s residency status, marking them as deportable subjects.¹⁶ Judges often appear to be unaware of this—since migration law and criminal law are different areas of knowledge—, or they simply do not care (or worse). Adding insult to injury, the mass criminalization of migrantized populations for low-level offenses fuels the myth of the “criminal migrant”—a racist construction that political actors on the right and in the center exploit to legitimize the extensive deprivation of rights for immigrants and asylum seekers. Criminalization thus acts as a mechanism for stripping migrantized populations of their rights and removing them from the country—and for legitimizing ever more drastic and extensive policies to facilitate this.¹⁷

In our archive, we label cases with the “Enforcing Borders” tag when we observe how people’s interactions with the criminal legal system are shaped significantly by their residency and/or asylum status. This includes, for example, when people are criminalized who have very little to no access to legal means of income; when people face long periods of pretrial detention on no other apparent grounds than their residence outside of Germany or foreign citizenship; when people face structural problems due to their migration which are neglected in the courtroom; when members of the court express prejudice against migrantized populations and asylum seekers, or suggest to defendants that they would be better off leaving the country; and when the severity of a sentence is likely to impact a person’s asylum status. These are just some of the ways in which criminal courts work to enforce borders and which we continue to monitor and document.