The Judiciary Power of Discretion in Sanctioning the Facilitation of Unauthorised Stay in Poland

Abstract

Migration control in Poland is significantly based on internal control practices carried out by street-level bureaucrats representing both law enforcement agents and low-level judges equipped with discretionary power. Based on empirical data from 243 criminal cases of facilitating unauthorised stay in Poland, we reflected on how the mentioned actors and, in particular, criminal judges interpret the existing provisions and to what extent they study cases independently or simply follow the logic of the law enforcement. We based our analysis on two distinct forms of identified cases of ‘supporting’ irregular migration; that is, participation in sham marriages and involvement in document fraud. We conclude that judges lacking expertise in the field relatively new to them may be less prone to question the effects of the preparatory proceedings, and they are not keen to look for any answers for themselves, especially to scrutinise and refer to the European Union law or jurisprudence. In their ‘craftwork’, they face cases that seem similar to them and, thus, not deserving of special attention. Judges lack the broader knowledge and possibly also reflexive thinking in assessing migration-related criminal cases brought to the courts by border guards, who prove their effectiveness inter alia through numbers of detected facilitators, not necessarily the roles played by them. All this may lead to unnecessarily broadening the scope of control over immigrants and a failure in achieving the objectives of criminal provisions.

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Except where otherwise noted, content in this journal is licensed under a Creative Commons Attribution 4.0 International License.
Published: 2021-09-01
Pages:72 to 86
Section:Special Issue: Transforming Borders and the Discretionary Politics of Migration
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How to Cite
Klaus , W. ., & Szulecka, M. . (2021). The Judiciary Power of Discretion in Sanctioning the Facilitation of Unauthorised Stay in Poland. International Journal for Crime, Justice and Social Democracy, 10(3), 72-86. https://doi.org/10.5204/ijcjsd.2042

Author Biographies

Institute of Law Studies, Polish Academy of Sciences
 Poland

Professor at the Institute of Law Studies, Polish Academy of Sciences (where he serves as a head of the Department of Criminology and head of the Migration Law Research Centre) and researcher in the Centre of Migration Research at the University of Warsaw; a lawyer, criminologist, migration researcher and civil society activist; one of the founders and currently the member of the Board of the Association for Legal Intervention (Chairman between 2005 and 2019); editor-in-chief of the oldest Polish criminological journal – “Archives of Criminology”.

Institute of Law Studies, Polish Academy of Sciences
 Poland

Research assistant at the Institute of Law Studies, Polish Academy of Sciences (member of the Criminology Department and Migration Law Research Centre), affiliate at the Centre of Migration Research, University of Warsaw; a criminologist, political scientist and migration researcher; author of publications devoted to migration policy and migration control, immigration law in practice, economic adaptation of migrants, irregular migration and migration-related criminal phenomena.