Criminal records and immigration in Europe and the U.S.

What are the emerging trends in Europe and the United States in considering a person’s past criminal record for purposes of travel, work and residency?  Professor James Jacobs of NYU Law School and three co-authors have just posted on SSRN a fascinating article titled Criminal Records and Immigration:  Comparing the United States and the European Union.   Research for the article, which will be published in the Fordham International Law Journal, shows that EU countries tend to focus primarily on public safety concerns in deciding the relevance of a criminal record for immigration purposes, including travel to and within the EU.  In contrast, the United States treats criminal record as “an indelible mark of bad character” that has become “the most important determinant of who is admitted to the country, who is removed, and who is offered the privileges of citizenship.”

While many U.S. practitioners and scholars are familiar with the ways a criminal record can affect a non-citizen’s right to enter and remain in this country, they will be interested to learn more about the complex and nuanced way that a criminal record can affect immigration to as well as travel and work within the European Union and its constituent countries. The authors ask the question whether increasing efficiency in access to criminal records in the EU will bring its laws and policies closer to those of the U.S.

The abstract follows:

As the revolution in information technology has made individual criminal history records more comprehensive, efficient and retrievable, an individual’s criminal history has become increasingly significant, triggering a broad and severe range of collateral consequences. There is no better example of this phenomenon than immigration law and policy, where developments in data storage and retrieval converge with opposition to immigration, especially to immigrants who bear a criminal stigma.

In debates in the United States over immigration reforms, even those politicians and legislators who advocate more liberal immigration policies generally concede the desirability of excluding those with serious criminal records from eligibility for new benefits or status. In the European Union, by contrast, although a criminal record may impact an individual’s ability to travel to or reside in a European Union country, it is not as readily dispositive of immigration outcomes.

As immigration policy evolves on both sides of the Atlantic, a key question for policymakers is about whether we screen for criminal records in order to protect the public safety or as a way to mark those with criminal records as somehow less deserving of immigration rights and benefits. This article details and compares the ways that the United States and the European Union use criminal records (including both conviction records and, in the U.S., some arrest records) for immigration purposes.  The article also outlines guidance for policymakers in both jurisdictions.

Professor Jacobs’ recent book The Eternal Criminal Record was reviewed on this site last summer.  His co-authors on the Fordham article are Dimitra Blitsa of the Greek National School for Judges, Lauryn P. Gouldin of Syracuse University Law School, and Elena Larrauri of the Universitat Pompeu Fabra (Department of Law).