‘deterrable.’ Third, arguably removal might have just as powerful a deterrent effect on some immigrants as a criminal prosecution and a term in custody. Why does deterrence need imprisonment? Finally, the possible deterrence of these sentences is further undermined by the unpredictability of the use of criminal powers in these cases. People caught with false documents or without one are usually summarily removed. As I have already argued, generally only those who cannot be immediately removed are prosecuted. Such practice clashes against the principle of predictability of criminal proscription and dilutes any preventive goal. Further, the justification of punishment solely on deterrence grounds, risks treating people as a means to achieve certain policy goals leading to unfair and disproportionate sanctions. Deterrence should not be used as a blanket justification for punishing and imprisoning people without legal status. In a recent decision, the European Court of Justice made clear that the exclusion of an EU citizen cannot be justified on general preventive grounds, that is for deterring others.25 Even less can a criminal sentence be based on wholesale preventive justifications without any reference to the individual circumstances of the case and as to why the custodial threshold is reached in that case. The weight of factors such as residence and immigration status is even more acute in the case of those accused of immigration crimes for procuring entry or stay by illegal means. As Rix LJ clearly put it in R v Benabbas,26 ‘illegality or irregularity can [...] be the essence of the offence for which the defendant is sentenced.’ In these cases, the judge continued, ‘the essential gravamen of the offence for which the defendant is being sentenced is itself an abuse of this country’s immigration laws’ [at 40, 41]. Hence the question of illegality is intrinsically connected to the crime for which immigration-related suspects are being called into account. These two aspects cannot be differentiated and in practice they are not. In ‘Benabbas,’ the Court of Appeal concluded that while the immigration status of the defendant might be irrelevant for the determination about deportation — which is based on the potential detriment to the country of the continued presence of the offender, in immigration-related cases the incriminating conduct is in itself detrimental to public order. Thus, a conviction in these cases per se merits a recommendation for deportation against the person so convicted. The seriousness of the offence and the need to prevent illegal immigration to the country seem to be weak justifications for imposing custody on these particular types of offenders. Instead, the central reason for punishing foreigners convicted for immigration-related crimes with custodial sentences is effectively linked to the real or potential prospect of removal and to more practical considerations around how to instrumentalise supervision arrangements in these cases. Bhui reports that prison and probation staff face difficulties when planning and supporting foreign nationals with their sentences.27 As a consequence, he indicates that ‘foreign nationals were less likely to be given assistance with education, training, housing, and employment advice, because limited resources were targeted on those who were certain to be resettling in the UK.’28 This last factor (the prospect of resettling) and the shadow of deportation seems to have an enormous weight in judicial decisions about how and for how long to punish those who defy the boundaries of their status. Immigration status, deportation and imprisonment The immigration status of the defendant seems to be crucial in the determination of the sanction, albeit not clearly articulated in sentencing decisions. Even though residence — and the possibility of deportation — should not have any relevance in the final decision, judges appear to take such factors into account when they choose the type of sanction in immigration-related cases. In the absence of legal status and residence, defendants are more likely to spend their sentences in prison. The prospect of removal is central for the determination of the sanction in cases involving unauthorised migrants. 25. 26. 27. 28. ECJ, Judgment of 10 February 2000. Ömer Nazli, Caglar Nazli and Melike Nazli v Stadt Nürnberg. Case C-340/97. European Court reports 2000 Page I-00957, par 64. [2005] EWCA Crim 2113. Bhui, H.S. 2009. Foreign National Prisoners: Issues and Debates. In: Bhui, H.S. (ed.) Race and Criminal Justice. London: Sage. Bhui, H.S. 2007. Alien experience: Foreign national prisoners after the deportation crisis. Probation Journal, 54, p. 373. Issue 205 Prison Service Journal 43