Penal Contradictions and the Pre-emptive Criminalisation of ‘Marriages of Convenience’: Towards an Anticipation-Discretion Nexus

Abstract At the end of 2023, family and marriage-related migration accounted for over one-third of residence permits granted to non-European citizens (According to Eurostat, 33.7% of all residence permits granted to non-EU citizens were for family-related reasons [Eurostat, 2023]). The focus on marriage as a migration strategy has been accompanied by the securitisation of spousal migration, with efforts to restrict transnational marriage targeting so-called ‘marriages of convenience’. Marriages contracted for immigration purposes are criminalised in 11 out of 27 EU Member States, while the remaining countries impose penalties, sanctions and criminal charges for ‘related offences’ (Eurojust, 2020). Despite this, the securitisation of transnational marriage has yet to receive attention in boarder criminology scholarship. This article bridges border criminology with marriage migration scholarship by analysing the shifts in Irish migration policy from reactive to pre-emptive control strategies, by targeting citizenship through marriage. It examines the dynamics of anticipation and discretion in the shift from spatial to temporal forms of migration control and proposes a conceptual framework for analysing pre-emptive criminalisation. This paper argues that the expanding boundaries of punishment in this instance are linked to the logic of the ‘future citizen’. It conceives of anticipatory criminalisation as a performative space in Irish political and legal structures where potential future citizens were imagined, invoked and contested. This critically examines the Irish state’s pre-emptive attempts to criminalise in legislation and discourse. The constitutional protection given to marriage in post-independence Ireland as part of establishing a national identity ultimately contradicted its ability to criminalise ‘marriages of convenience’. When formal criminalisation failed, the state adopted a hybrid administrative/criminal approach that transcended the constraints of physical borders by targeting ‘intent’.