How criminal courts blend punitive ends with immigration control aims: The decision-making process of the discretionary prosecution provision to authorise an administrative expulsion

Abstract

The involvement of the criminal justice system in immigration control is nowadays a global phenomenon that has called the attention of academics and practitioners. The Spanish legal regime has not been immune to this occurrence, encompassing a series of situations in which criminal courts are required to make decisions that can have significant implications upon immigration law enforcement. One of the most noteworthy provisions in this regard is that by which criminal courts are allowed to exercise discretionary prosecution to authorise the administrative expulsion of a prosecuted foreigner (Art. 57.7 Aliens Act). Drawing on focused observation of a court setting and semi-structured interviews with judges, prosecutors, clerks, court personnel and defence attorneys, the main findings of this paper hover around the idea that expulsion is a court’s culturally constructed punishment, defined more by the meanings attributed to it by court actors than by its formal legal categorisation.