The Banality of Crimmigration—Can Immigration Law Recover Itself?

Abstract

This article argues that criminal law has overtaken immigration law to such an extent that the notion of “crimmigration” is no longer shocking. In Canada, where the population has long been supportive of immigration and where national politics have been remarkably consensual in matters of immigration, crimmigration now forms the basis of a new form of bipartisan consensus. By looking back on the Justin Trudeau Liberal government, we see that most of the Harper-era crimmigration measures were left in place, and the advance of crimmigration continued unabated. If we are to make any progress in recovering space for values other than crimmigration in our immigration law and politics, we need to both think more creatively about the future and recover our sense of outrage.

1. Introduction

Early in 2025, the intertwining of immigration law and criminal law is taken as a given in Canada as in other global North states. The idea that a second Donald Trump presidency would usher in an unprecedented wave of deportations was greeted around the world with resignation rather than condemnation or challenge. In the early weeks of the presidency, Canada and Mexico rushed to reassure the new US President that they would redouble their efforts to prevent criminal crossings of their borders. Concerns about all manner of criminality often appear to be at the heart of immigration law, so much so that it is easy to overlook how new this trend actually is, and how much it undermines immigration law broadly speaking. What is clear, however, is how politically useful the intertwining of immigration and criminal law has become.

Canada has moved towards “crimmigration” in lockstep with other countries, despite the fact that for much of its history, Canada has been distinguishable from similarly situated states by strong levels of public support for immigration and frequent political consensus around key immigration issues. This backdrop makes Canada an important setting in which to consider whether crimmigration can be countered. This article aims to answer that question by looking at recent changes in Canadian immigration law that have definitively untethered immigration law from longstanding mythologies of immigration in Canada. My central argument is that the potential uniqueness of Canadian immigration law has disappeared, and that a deeply embedded political commitment to crimmigration is the principal reason for this fact. I conclude by considering what is lost when immigration law is contorted in this way and asking whether it is possible to change tack, or whether indeed crimmigration has reached a level of such banal acceptance that it cannot be undone.

2. Understanding Crimmigration

When Juliet Stumpf coined the term “crimmigration” in 2006, I believe that one of her objectives was to shock a complacent scholarly community into the realization that a coming together of criminal law and immigration law was already well in train, and that the consequences would be far-reaching (Stumpf 2006). Stumpf’s article is surely one of the most successful American law review articles ever published: it has been cited more than 2500 times and downloaded from the American University’s Washington College of Law digital commons almost 22,000 times.1 A subfield of immigration law scholarship has grown up around the idea of crimmigration, and the Hein Online database now summons 1936 articles when the term is entered. All but one of these post-date Stumpf’s article (The single earlier hit is irrelevant—a 1992 issue of the Florida Bar news, which contained a note that a law firm named ‘Crimmigration’ was moving its office (Florida Bar News 1992, p. 30)). Stumpf may or may not have shocked readers, but she certainly hit a chord.

Less than twenty years later, however, what is most remarkable about the idea of crimmigration is how mundane it has become. This is true not only in the United States, which was the jurisdiction Stumpf wrote about, but throughout the world. Rather than signaling a provocative thesis with a dire warning about the future, crimmigration now stands as a straightforward descriptor of what immigration law does. Any possibility of shock has disappeared in the face of a cascade of changes to immigration laws, mostly since the beginning of the twenty-first century. I have written about these changes and worked to explain why they have occurred.2 But that story, like that idea of crimmigration itself, has become commonplace. Furthermore, the explanatory reach of the crimmigration concept has been taken up by scholars across the global North (Bosworth et al. 2024, pp. 3–4). The range of this work is reflected in influential collections published by Aas and Bosworth (2013), by Koulish and van der Woude (2020), and most recently by Bosworth et al. (2024).3 While much of this work has been produced by legal scholars and focuses on law, other disciplines such as criminology, sociology, anthropology, and political science are well represented. In the face of this extensive scholarly output, what is most pressing now is to understand why the provocative edge of crimmigration has faded away; and to move beyond that ‘why’ into examining the consequences for immigration law—and immigration politics—of the post-crimmigration reality.

Juliet Stumpf began her famous article with a fictitious memo to a newly elected American president, urging them to consider a new approach to the crimmigration crisis looming over the republic. Drawing on legal changes and political maneuvering already unfolding in 2005 and 2006, she sketched a dystopian future. But there is an undeniable shock in picking up Juliet Stumpf’s article in the early days of a second Trump presidency. Stumpf situated her dystopian vision in January 2017, far enough away from 2006 as to be beyond the imagination, but not so far that the trendlines Stumpf illuminated would seem distant or irrelevant. It is eerie to reflect that when the real January 2017 rolled around, it was Donald Trump who was the newly elected president. Crimmigration had advanced well beyond Strumpf’s predictions, and the unimaginably worse was just over the horizon. We live now in an immigration law world that was unforeseeable in 2006.

There are two important points to make regarding Stumpf’s strategic choice to situate her analysis with a nod to the American presidency. The first is that while the United States has been home to some extreme and brutal examples of crimmigration, it is certainly not alone. While publics (and scholars and policymakers) are no longer shocked by the idea of crimmigration, some instances in which it plays out must surely remain deeply shocking. I think here of children in cages at the southern border to the United States (Bhatnagar 2019), or of asylum seekers in Britain rounded up in the middle of the night and put on a plane that they were told was flying to Rwanda, although in fact it never took off (Bosworth 2025, pp. 91–109), or of a woman detained deep in the bowels of Vancouver’s international airport taking her own life (Cameron 2014). Crimmigration is a worldwide phenomenon these days, and the scholars who have taken up Stumpf’s analysis are working on problems from every area of the globe.4

The second important idea that is anchored in this strategic beginning is that, as much as crimmigration is a merging of immigration and criminal law, it is also a merging of immigration law and politics. While questions of immigration are often politicized, the twenty-first century has seen immigration move to the center of electoral politics in Western liberal democracies in a way that was previously unprecedented (Dauvergne 2016). British PM Keir Starmer cancelled his predecessor’s so-called “Rwanda Plan” 48 h after being elected (Associated Press 2024); Australian PM Anthony Albanese campaigned in 2022 with a promise to end temporary protection visas and instead to allow refugees in Australia to remain permanently (Karp 2022); the pitched battle between far right and far left in France has strong immigration content (Pascal 2024). Deportation was a centerpiece of Donald Trump’s 2024 campaign. It is hard to think of a democratic state where similar examples do not arise. Stumpf’s crimmigration analysis is located within the law, but the politics are never far away. The electoral importance of immigration politics, indeed of “crimmigration politics”, to take the coinage further, suggests that crimmigration politics are partisan. This is a point I will return to because Canada provides a peculiar counter-example here.

Stumpf defined crimmigration as a convergence of criminal law and immigration law, such that “…criminal law is poised to swallow immigration law” (Stumpf 2006, p. 376). She detailed this lopsided convergence by describing how immigration law provisions have melted into criminal law substantively, but also in their approaches to enforcement and in their procedural aspects (Stumpf 2006, p. 381). While in 2006 she wrote that the merger was odd as criminal law and immigration law seem “distant cousins” (Stumpf 2006, p. 379), it is difficult now to think of them as anything other than siblings. Stumpf’s analysis included looking at the changes that ratcheted up deportation for non-citizen offenders, a sharp increase in the number of immigration-related criminal offenses, and the increased use of immigration law to address concerns about terrorism. She recounted the transformation of the border patrol and the marked uptick in the use of immigration detention (Stumpf 2006, pp. 381–92). Stumpf also highlighted the most vital area where immigration law and criminal law have failed to converge: access to rights protections (Stumpf 2006, pp. 392–93). This impoverishment of rights in the immigration setting occurs in almost all jurisdictions, reflecting the strong linkage between control over immigration and sovereign power (Dauvergne 2004; Mitsilegas 2022). Finally, Stumpf offered an explanation for the convergence of immigration and criminal law by drawing on theoretical accounts of membership, highlighting the importance and fluidity of the line between ‘us’ and ‘them’, and how both criminal law and immigration work fundamentally to exclude (Stumpf 2006, pp. 413–18).

All of these features of crimmigration, including the idea that immigration law is used principally to police the boundaries of an ‘us’ group, are more commonplace now than they were in 2006. It is hard to remember the time when the Canadian Border Services agency did not exist (it was created in December 2003), or when its agents on the border were not armed (which began late in 2006, see Government of Canada 2006).5 The number of people deported from Canada has climbed over the past decade.6 Since the beginning of the 21st century, the Supreme Court of Canada has found that in (very rare) circumstances, non-citizens could be deported to face a risk of torture (Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC 1) or detained (again, very rarely) indefinitely (Charkaoui v Canada (Citizenship and Immigration) 2007 SCC 9), and that the United States’s asylum system is sufficiently robust to meet Canada’s human rights obligations (Canadian Council for Refugees v Canada (Citizenship and Immigration) 2023 SCC 17). Canada has participated fully in the turn towards crimmigration through a series of subtle and not-so-subtle modifications of its immigration law. But we have done so in a way that is distinctly Canadian, and that can therefore reveal some of crimmigration’s contours and that may help us to understand how crimmigration has lost its shock value and instead merely signifies how immigration law functions.

3. Canada’s Bipartisan Crimmigration

The Canadian case proves a telling instance for examining the evolving nature of crimmigration and its relationship to politics, and to political partisanship, especially. This section canvasses major changes in Canadian immigration law through the twenty-first century and discusses how they reflect the crimmigration agenda. Tracing these changes and their relationship to political partisanship provides a basis for the subsequent consideration of what lessons the Canadian case may yield about how crimmigration works.

Canada has, for many years, been remarkable because of both the extent to which its population has been supportive of immigration and because of a longstanding bipartisan support for immigration shared by the two dominant national political parties (Hiebert 2016). Both of these trends have seen recent challenges, and attention to crimmigration helps explain what has and has not changed. At first blush, the trajectory of Canadian immigration law reform in the twenty-first century looks remarkably partisan, but closer attention to which legal provisions have shifted and which have not reveals that the advance of crimmigration has been remarkably resistant to partisan shifts. Amidst policy shifts on a number of other immigration matters since the introduction of the Immigration and Refugee Protection [IRPA] Act (SC 2001 c 27) by Jean Chrétien’s Liberal government in 2001, crimmigration measures have advanced with a few interruptions.7 The IRPA occupies an interesting position in the evolution of crimmigration. The law was passed prior to the terror attacks of 9/11, but came into effect in 2002. In comparing the broad objectives of the IRPA with its predecessor statute, the Supreme Court of Canada concluded that “…the IRPA indicates an intent to prioritize security” (Medovarski v Canada (Minister of Citizenship and Immigration) 2005 SCC 51, para 10). The IRPA’s framework architecture ensures that it functions as a sieve through which political objectives can be poured and quickly transformed into law with minimal democratic scrutiny (Dauvergne 2003, pp. 741–42). In short, the legislation itself contains some features of the crimmigration turn, and provides the foundation for others.

In looking at the progress of crimmigration in Canada, a useful starting point is a quick reminder of some immigration politics headlines of the past twenty years. Stephen Harper was elected Prime Minister in 2006 with a minority government, continued with a second (larger) minority government in 2008, and governed with a majority from 2011 to 2015. In a piecemeal fashion, Harper’s government rewrote much of Canada’s immigration and citizenship law to reflect the priorities of his Conservative Party. The piecemeal approach may have been deliberate, as proceeding in this manner avoids calling attention to a major policy overhaul.8 Indeed, the Harper government used omnibus budget legislation as a vehicle for some significant immigration law changes, further hiding them from view (for example, see Canadian Council for Refugees 2019). Legislative highlights of the Harper government’s immigration reform included several provocatively named laws with strong crimmigration content. The Balanced Refugee Reform Act reduced entitlements for refugee claimants and introduced both safe country of origin provisions and a capacity to “designate” people based on whether their mode of entry was allegedly criminal. Both these features led to reduced rights entitlements for some asylum seekers, just as Stumpf’s crimmigration model suggests (SC 2010, c 8). The Faster Removal of Foreign Criminals Act decreased the threshold standard in criminal law at which non-citizens would become inadmissible and permanent residents would lose their status (SC 2013, c 16). The Strengthening Canadian Citizenship Act limited the reach of jus sanguinis citizenship and introduced the capacity to strip Canadian citizenship from dual citizens convicted of treason, espionage, or terrorism in order to deport them (An Act to amend the Citizenship Act and to make consequential amendments to other Acts (short title: Strengthening Canadian Citizenship Act) SC 2014, c 22). Finally, the Zero Tolerance for Barbaric Cultural Practices Act introduced a new ground of inadmissibility to Canada on the basis of polygamy, sought to “clarify” aspects of the existing marriage law, and strengthened Criminal Code provisions relating to forced marriage (SC 2015, c 29).9 Each of these pieces of legislation fits the crimmigration framework: heightening immigration penalties for criminal activities; increasing penalties for immigration related offences; creating immigration related offenses, which were previously non-existent; reducing procedural protections; and eliding crime and immigration rhetorically.

One result of this legislative agenda was that by the time of the national election campaign in 2015, immigration was a significant wedge issue separating the two major parties more deeply than in any election campaign of the preceding half-century (Barber 2015; Pendakur and Sarna 2023). This division reached an inflection point when, one month into a two-and-a-half-month electoral campaign, two-year-old Kurdish Syrian Alan Kurdi drowned during a crossing of the Mediterranean while his family was attempting to reach Europe, and then travel on to Canada, to seek refuge (Kingsley and Timur 2015). The Justin Trudeau-led Liberals campaigned on a promise to immediately provide resettlement for significant numbers of Syrian refugees, and to “undo” significant parts of the Harper immigration and citizenship law reforms (Semotiuk 2015). At the time of the 2015 election campaign, it looked as though the longstanding bipartisan immigration consensus was on the verge of fracturing. But attention to crimmigration reveals a deeper constancy.

The Liberal Party won the October 2015 election and immediately launched into fulfilling their promise to resettle Syrian refugees, with more than 25,000 arriving between 4 November 2015 and 29 February 2016 (Government of Canada 2019). This effort was undeniably remarkable and important, and the Trudeau government demonstrated that it is possible for its immigration bureaucracy to move much more quickly than is typical.10 The important achievement of welcoming and supporting this group is contextualized somewhat by noting that the number of Syrians arriving in Canada throughout the remainder of 2016, and in subsequent years, returned to more ordinary levels, despite ongoing risks in the region, and in comparison with the million asylum seekers Germany welcomed during 2015.

The Trudeau government also made good on its promise to reverse some of the Harper-era immigration law reforms. This trajectory is particularly revealing. For example, no changes at all were made to the provisions that the Faster Removal of Foreign Criminals Act had introduced to the IRPA. In the case of the changes introduced by the Strengthening Canadian Citizenship Act, while the citizenship stripping provisions were quickly reversed, the limitations to jus sanguinis rules were not (An Act to amend the Citizenship Act and make consequential amendments to another Act, SC 2017, c 4). Only one person was ever stripped of citizenship using these provisions, but thousands of foreign-born Canadians are affected by the limitation on their ability to pass on their citizenship.11 While the Trudeau government did not use the provisions introduced by the Balanced Refugee Reform Act that permit “designating” individual asylum claimants and safe countries of origin, these provisions have not been removed from the law and could therefore be used at any time. Furthermore, the other procedural changes to asylum-seeking rules remain in place. In sum, highly symbolic changes have been made in the law and in its application (citizenship stripping and backing away from “designations”), but these rules would only ever have applied to small numbers of people. Those aspects of the Harper crimmigration regime that apply to large numbers of people every day (accused or convicted non-citizens, and people born abroad to Canadian parents) were left untouched by the Trudeau government. In sum, the crimmigration core of the Harper-era changes remains in place. Notably, the jus sanguinis rules will be changed because of a successful court challenge, not because the Trudeau government chose to act.12

Beyond how the Trudeau government responded to the changes of the Harper era, it also introduced a number of new changes to immigration law that fit the crimmigration formula. These changes include extending the reach of the Safe Third Country agreement with the United States to apply to the full length of the border, not solely to official border crossings;13 adding to the list of criminal inadmissibilities that need not be proven beyond a reasonable doubt (An Act to amend the Criminal Code and the Immigration and Refugee Protection Act SC 2022, c 18); further disintegrating the legal framework for humanitarian and compassionate exceptions to the law; and adding a new “integrity” objective to the IRPA, which appears to take aim at ensuring that offences under the act be taken more seriously by adding interpretive heft to the legal framework (Budget Implementation Act No. 1, SC 2019, c 29, ss 296 & 297). Every one of these changes was made prior to a second Donald Trump presidency in the United States being considered a serious prospect. Writing in the early weeks of the second Trump presidency, it is impossible not to imagine that further changes—their substance unforeseeable—must surely be on the horizon, regardless of who the Prime Minister is in 2026.

The most striking distinction in Canadian immigration policy between the Harper government and the Trudeau government is in the number of people admitted. This is true across all migrant categories, with annual targets for permanent resident admissions rising to a range of 410,000–505,000 in 2023 in comparison with 240,000–265,000 in the final year of the Harper administration.14 Changing admission numbers, including welcoming 25,000 Syrians in a three-month period, does not involve changing the law at all. This is also true of the high admission numbers for temporary foreign workers and international students, two categories where numbers increased significantly during the Trudeau years, to the point of attracting significant negative attention in the national press (e.g., Omidvar 2024; Ivison 2024; Calgary Herald 2024). The difference made by numbers, in the absence of any legal shift, provides an example of when it is possible to prise immigration law and immigration politics apart. There is no legal change required for this policy shift; all that is needed is political will (and the bureaucratic back-up to achieve the intended result). It may even be possible that the steadfast commitment to the crimmigration agenda is one of the factors that provide political support for significant increases in numbers.

A final insight into the bipartisan nature of Canada’s approach to crimmigration is provided by attention to the program called “Express Entry”, which was introduced in January 2015, in what turned out to be the final months of the Harper administration. Initially pitched as a relatively minor change in the mechanics of processing applications for economic class permanent residency applications, Express Entry has instead upended the decades-old centerpiece of immigration to Canada (Kaushal 2019). The Express Entry system layers onto the well-known points system for economic migrant applicants a super-preference for immigrants selected by provincial governments, those with existing job offers, and labor market shifts. It is designed to change rapidly, using a system of “draws” made at random time intervals. The result is a program that is much less intelligible to applicants than the system that preceded it, and much more directly manipulable by governments at both provincial and national levels. The Trudeau government embraced the change brought by Express Entry, which has expanded significantly since its early days under the Harper government.

On the surface, this program appears to have little to do with crimmigration, but the underlying logic taps into the same ideological approach to immigration. Express Entry moves immigration to Canada away from being a logical path that potential immigrants can plan on, and a queuing system for application processing that one can wait out (even if the wait is incredibly long), to a system where governments and employers are more vital to an individual’s chances of success. In this way, Express Entry taps into the same shifts as the crimmigration agenda: towards government control rather than individual autonomy; towards state policy choices rather than individual rights; and towards quick policy shifts rather than procedural protections. While other countries are still admiring the Canadian points system as a model of immigration policy and law, Express Entry has effectively dismantled it (Macklin 2015; York 2023). The hitch, of course, is that this dismantling is obscured. The points system still exists, but its effectiveness is almost fully muted. The Express Entry story is one illustration of how the values of crimmigration have seeped into other aspects of immigration law. The processes, protections, and entitlements of permanent residency in Canada have changed dramatically in the crimmigration era (Ellermann and Gorokhovskaia 2019). The Express Entry program also demonstrates that the traditional alignment of immigration with sovereign power provides a clue to the endurance of the crimmigration agenda. It is characteristic of immigration that state “rights”—the bundle of entitlements that make up sovereignty—prevail over rights belonging to individuals.

As we move towards another national election in 2025, the Trudeau government is hard at work re-establishing a new kind of bipartisan consensus about immigration to remove the wedge issue by jumping on board the moral panic about immigration, fueling a housing shortage, and foreign student numbers ballooning. Throughout 2024, the government moved to reduce the number of permanent residents to be admitted, to sharply curtail the number of international students admitted into the country, and to introduce new checks on the temporary foreign worker program (Government of Canada 2024; Tasker 2024). The prospect of a genuine divergence between the two dominant political parties about immigration is considerably less likely than it was at the time of the 2015 election that followed the Harper-era construction of several major pieces of crimmigration architecture in the law. The centerpiece of policy divergence is now about the number of migrants to be admitted, rather than about how they ought to be admitted or how immigration law ought to work. Immigration law in Canada has shifted markedly from its twentieth-century form, and this shift has been achieved by a consistent commitment to crimmigration principles across changes in governments and in ruling parties. A dispute about how many immigrants to admit is not insignificant, and it sensibly generates political debate. But this debate rests on a backdrop of significant agreement about the form that the law ought to take, and that form is strongly marked by the ideology and techniques of crimmigration. Canada is once again demonstrating a remarkably bipartisan approach to immigration matters, but now with crimmigration at its core and with hostility towards migrants seeping into all aspects of the law.

4. Confronting Crimmigration?

To approach the question of whether the crimmigration agenda might be countered, it is useful to understand why the shock value of the crimmigration label has disappeared and what makes crimmigration feel inevitable at this point in history. This section begins by exploring these questions and then draws on those discussions to approach the more complex puzzle of how the Canadian case might offer particular lessons because of the unique history of Canadian immigration law.

Turning first to the question of crimmigration’s declining shock value, it is challenging for immigration law scholars to internalize the idea that there is little surprise left in this space. Stumpf’s original work was a call for change, for policy and lawmakers to turn away from the trends that make up crimmigration. At the 2024 conference that Professor Stumpf hosted many presenters (myself included) were still keen to highlight the various appalling ways that crimmigration functions—to shock the audience.15 Increasingly, however, a more urgent question is whether there are any elements of immigration law that are not part of the crimmigration agenda. We have perhaps reached a stage where the truly shocking development would be a rollback of any aspect of crimmigration.

What can account for this normalization and acceptance of crimmigration? It is hard to empirically demonstrate an answer to this puzzle, but several factors are persuasive. First among these is that immigration law, more than any other legal field, is intertwined with politics. In Canada, the IRPA functions as a sieve through which any political priorities can be poured and transformed into law. As the early decades of the twenty-first century have seen a shift towards the right generally, and populism in particular, in many Western states, a hardening of attitudes towards immigration has been increasingly prevalent.16 This backdrop makes crimmigration measures an easy and logical step. This shift was given a massive boost by the terror attacks of 9/11, which led to a cultural shift in attitudes towards immigration and a linkage between immigration and terrorism, which is now deeply internalized in Western cultures. This link also supports crimmigration agendas. Stumpf’s insight that theories of membership help explain the emergence of crimmigration can be extrapolated to provide an explanation for crimmigration’s successful continuation. Beyond all of these factors is the realization that shock value simply wanes over time. For many lawyers and policy makers in 2025, a time when crimmigration did not dominate the immigration law landscape is beyond their experience. There is little wonder they do not find it shocking. For those of us tempted to issue call after call for a return to the ways of the past, this is a vital fact with which to grapple.

The question of whether crimmigration is an inevitable evolutionary point for immigration law is also an important one. Immigration law as an identifiable legal field emerged in the early twentieth century (Dauvergne 2016). For much of that century, legal frameworks for immigration in Western liberal democracies varied markedly between settler states that were using immigration in a nation-building mode, and European states that were not (yet) interested in mass migration (Joppke 1999). Colonial patterns were imprinted in the law in a variety of ways, shaping barriers and pathways (Joppke 2005; Dauvergne 2016). By the early twenty-first century, however, the differences in immigration law frameworks had been whittled away, and few distinctions relating to historical immigration patterns remain in immigration laws across the globe (although colonial markers remain in a variety of ways). It is now reasonable to assert that a central, perhaps the central, purpose of all immigration laws is to keep people out and to create a disciplining function while they are present, using the continual underlying threat of expulsion. Given this, crimmigration does have an air of inevitability.

The moment in time captured by Stumpf in 2006 with the crimmigration coinage marked an important shift. There is a vital difference between seeking to exclude people on the basis of previous criminal activities (which immigration law has done from the very beginning) and embedding criminal law logic at the center of the law. In the pre-crimmigration era, the exclusion of alleged criminals still gave rise to problematic legal and ethical issues, but the idea of migration was not itself tinged with criminality, and the law was not shaped by the mechanisms of criminal law. In democratic systems, a turn towards crimmigration is fostered by the fact that migrants do not vote. Immigration law is the only domestic law where those to whom it is applied are not part of the populous from which the government must draw support.17 This means crimmigration is an easy outcome in democratic states, if not entirely inevitable. The democratic calculus draws on Stumpf’s point about membership theory, but in a more banal way. No particular theoretical nous is required to think through the voting mechanism. A further factor contributing to the rise of crimmigration is that the number of people seeking to move globally has risen enormously, even while it remains true that more than 95% of the world’s people live their lives in the country where they were born (IOM 2024). With population growth, this amounts to a huge number of people aspiring to emigrate, and thus, for states intent on exclusion, the appeal of an ever-stronger exclusion politics.18

Despite the loss of shock value and the aura of inevitability, a crimmigration model for immigration law is not strictly inevitable. It remains a political choice. A choice which is especially appealing in Western liberal democracies at this point in history. Given Canada’s unique history of having a widely shared national political support for immigration, it makes sense to carefully consider Canada’s version of the crimmigration narrative for inspiration about how crimmigration might be countered.

In the most recent edition (2019) of the World Gallup Poll’s Migrant Acceptance Index, Canada ranked first in the world as a place where the population is accepting of migrants.19 A 2023 Environics survey showed that a significant majority of Canadians (74%) believed that the overall economic impact of immigration for Canada was positive (Environics Institute for Survey Research 2023). This majority had prevailed over the past 30 years, according to Environics data in 2023.20 The same data show that while 30 years ago, only 23% of Canadians felt that too many immigrants do not adopt Canadian values, by 2023 that number had hovered around 50% for four years. It is possible, perhaps even likely, that support for immigration has waned since these data were collected 18 months ago, given that concerns about how temporary foreign workers and international students have contributed to a Canada-wide housing shortage have been widely reported, and all the national political parties have been keen to proclaim how they will address this crisis. But over the very long run, support for migration in Canada has been remarkably consistent. In 2016, Dan Hiebert wrote that “Despite weathering many of the same economic and political challenges that have buffeted support for immigration in other countries—from recession to threats of terrorism—Canada has managed to maintain a consistently positive public consensus around its immigration system” (Hiebert 2016, p. 1).

Against this backdrop, the fact that crimmigration has advanced in Canada along a very similar trajectory as elsewhere reveals two things. The first is that crimmigration appears to have been used to help foster ongoing support for immigration, perhaps even within the government, rather than simply amongst the public. This seems especially likely over the 2015–2025 Trudeau government decade, when positive immigration rhetoric and a sharp increase in immigrant numbers accompanied a steady commitment to crimmigration measures. Perhaps in some future era when the Cabinet discussions of the Justin Trudeau government can be made public, more of this story will be subject to verification rather than speculation. But the speculation is logical and persuasive, and reaffirms what migration scholars have long known—that migration policy functions in a symbolic register as often as not.21 Understanding the symbolic function of crimmigration and its political currency adds an important dimension to consider in strategizing against it. The Trudeau government’s alleged opposition to Harper-era crimmigration measures amounted to a few symbolic changes, nothing more.

A second observation highlighted in the Canadian trajectory is that professed support for immigration by political leaders is not antithetical to crimmigration shifts in the law. This point is easy to overlook as crimmigration is often associated with anti-immigration rhetoric, but the Canadian case forces it to the forefront. While governments opposed to immigration do certainly rely on crimmigration measures, a more complicated agenda arises when pro-immigration governments embed crimmigration measures in their laws. The results are obscured and therefore harder to fight against.

Another feature of Canada’s turn towards crimmigration has been a marked increase in immigration litigation. Prior to the legal challenges that began to add up during Stephen Harper’s prime ministership, there were remarkably fewer immigration law cases at the Supreme Court of Canada, or even the Federal Court of Appeal, than at comparable courts in the United Kingdom, Australia, or even the United States (Dauvergne 2016). Some of this distinction can be attributed to the way that Canadian immigration law decisions are insulated from judicial review, and that those judicial reviews are insulated from appeal.22 But these restrictions do not provide a full explanation. Another important explanatory variable is that prior to the turn towards crimmigration, the stakes in immigration matters were lower, political tensions were often about policy rather than law, and many contentious matters did not engage the constitutional rights set out in the Charter of Rights and Freedoms [Charter] (Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11, s 7). It is the link to the Charter that is important in the crimmigration context. The Charter provision that is most often invoked in immigration matters is Section 7: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. Section 7 has had a profound impact on criminal law in Canada, and thus it makes sense that it has become more relevant to immigration law as crimmigration has advanced. What is more, while non-citizens have generally had modest success at best in Charter arguments, in the most recent years, there have been some meaningful advances.23 The insight that is easier to see in the litigation-scarce Canadian context than elsewhere is the following: crimmigration will eventually bring immigration law closer to the substantive and procedural rights that are familiar in criminal law.

These made-in-Canada insights offer crucial hints about understanding the persistence of crimmigration and about strategizing to confront it. A first point is that while Stumpf coined the term crimmigration to describe what was happening to immigration law, crimmigration is also politics in its purest form. It is important to strengthen our understanding of how the law and politics are intertwined. The Canadian backdrop of generally favorable immigration politics helps us understand how crimmigration is used, especially as a support for favorable moves in immigration policy—such as the Justin Trudeau government’s support of much higher admission rates across all categories. Immigrant-supporting policy and law can function as a Trojan horse for introducing and sustaining crimmigration measures. Among other problems, this political strategy makes it difficult for immigration advocates to fight against crimmigration measures, as such fights may put the positive immigration policies that accompany them at risk as well. Canada’s new bipartisan political consensus coalesced remarkably quickly, such that by 2025, all major parties had aligned to argue that immigration was the principal cause of a housing crisis. The fact that crimmigration is a key explanation of, and modality for, the new consensus in migrant-friendly Canada demonstrates an important aspect of its political power. The work of confronting this Trojan horse crimmigration is to unmask this function and argue directly against it. It is crucial that immigration advocates tackle this head-on and repeatedly reveal that so-called pro-immigration policies may rest on anti-immigrant, rights-denying platforms such as the one that sustains Canada’s Express Entry program.

We also see in the Canadian context the role that substantive and procedural rights developed in the criminal law context can play. An important avenue for arguing against crimmigration is to center crimmigration provisions squarely on the terrain of criminal law and thus to argue that criminal law’s procedural protections ought to pertain. A landmark in Charter law for immigrants was the 1992 decision in Chiarelli in which the Supreme Court of Canada held that in the case of deportation of permanent resident convicted of serious crimes the Charter’s Section 7 protections should be interpreted in an “immigration context” rather than a “criminal context” (Canada (Minister of Employment and Immigration) v Chiarelli [1992] 1 SCR 711 at 732–4). This early ruling signified that Charter protections would be lesser in immigration law than elsewhere, and the work of chipping away at this decision has been painstaking and is not completed. Stumpf had already pointed to the lack of process rights under crimmigration conditions. One part of admitting that the status quo ante is no longer an aspirational goal must be to argue more strenuously that immigration law has become criminal law, and that therefore a full range of both procedural and substantive rights ought to be elaborated. This amounts to ceding some ground, of course, but as immigration law has become criminal law, criminal rights protections must be made to prevail.

This conclusion in turn points to the most important direction for confronting crimmigration—however appealing the past may be, advocacy must look towards the future. This insight is not uniquely Canadian, but is important for Canadian lawyers and advocates, and it has been especially hard for us to accept given our long history of political support for immigration. Despite not being inevitable, crimmigration has a deep hold on immigration law in Canada and across the globe. The arguments curtailing its worst abuses will be grounded in a deep understanding of its complicated and often deceptive politics. Canada’s new bipartisan political consensus is not solely foregrounding crimmigration, but it does align with an easy vilification of migrants, and it has filled the mainstream media with a rhetoric that provides cover for a traditionally migrant-supporting government to introduce crimmigration measures quietly. In Canada, we have reached a point where our historical penchant for political consensus on immigration matters is no longer serving migrants well, as that consensus slides towards crimmigration. It may be worth working to prise the consensus apart, however difficult that challenge appears. Immigrant advocates are accustomed to poor odds. In addressing legal aspects of crimmigration, advocating for more features of criminal law to be incorporated into criminal exclusions within refugee law, or the criminal trajectory towards deportation seems fruitful. For example, in decisions where criminal law considerations are central, it would be useful to engage a cadre of decision makers trained in the substantive and procedural rights of criminal law to foster stronger rights-based decision making. Advocating for a future where criminal law has not completely swallowed up immigration law requires understanding and confronting the extent to which we are already at that point, and considering, on that basis, where to go from here.

The turn towards crimmigration makes it difficult or impossible for immigration law to deliver on rights commitments to migrants. It undermines the idea that immigration law can be about empowering choices and strengthening communities. It breaks the decades-old bond between immigration and national identity. All of this is at stake when we consider strategizing against crimmigration measures. The Canadian case is compelling in the way it demonstrates that crimmigration is not a partisan patina but a shift in the core values of immigration law. It also foregrounds the symbolic functions of crimmigration provisions, as well as providing a unique illustration of the intertwining of law and politics. In Canada’s long history of support for immigration, a current risk is to focus on that history and thus disregard the impacts that crimmigration has had. There is no path back to the immigration law of the past, but new forms of resistance to crimmigration remain possible. Vitally, finding new ways forward demands that we confront crimmigration by understanding it more deeply and resisting treating it as a banal inevitability. Cultivating the outrage Stumpf urged upon us is more important than ever.