Immigration Detention

At the most basic level, detention is the practice of holding a person or people against their will. It is associated with incarceration, imprisonment and, to varying degrees, punishment through the deprivation of liberty. Detention is most often at the behest of a state or national government. The British state, for example, describes the condition of those under criminal conviction as ‘detained at His Majesty’s Pleasure’. The French state has one of the largest networks of immigration detention facilities Detained persons may be subject to detention because of criminal, political, or reasons due to their status in society, or more accurately the varying ways in which the state views their status based on contingencies of the day. It is the latter condition of residency status, and belonging, which most concerns migrants, asylum seekers and refugees.

Immigration detention is a specific category as there is no necessary connection between the detained person and proven criminality, or extreme political dissonance, or indeed any behaviour other than being deemed of the wrong legal standing within a particular bordered state at a particular period of history. The one exception is the Immigration Removal Centres that are set up to hold persons who have served prison time for an actual misdemeanour and are then deported back to a supposed country of origin.

Even in these cases, the ex-prisoner would normally be released back into society and it is the birth or nationality status of the detainee that results in further detention. Concerns for those detained as immigrants arises from the administrative nature of their loss of liberty and mobility, and the executive nature of the decisions made as to when and why people are held, and for how long. Detainees do not receive a sentence of x months or x years, as they would under a criminal conviction. Rather, they are detained without the usual guarantees of imprisonment in a justice-based system (flimsy or restrictive as those may be in practice). The European Union, and member states, accept that detainees must be treated with dignity. Likewise, lawyers in the United Kingdom (before that country’s secession from EU membership) have repeatedly pointed out that detention should be subject to principles of fairness, and human dignity, and that alternatives to detention always should be explored. They also note that such principles are often not used in practice, and that governments increasingly use detention as a form of fear-based, immigration management, that is heightened for electoral advantage. In the 21st century immigration detention has been ever more firmly linked to the global mobility crisis. Crisis in relation to refugees, was a term which emerged after the Arab Spring, an uprising that erupted first in Tunisia in 2011, and spread quickly to Egypt and across North Africa. The civil war in Syria was foreshadowed by this emergence of popular discontent. The continued use of the word, crisis, is however contested as it suggests that there could be a likely (or enforced) pause in global mobility, on the one hand, and that the people who arrive bring crisis to the places they wish to settle or work, on the other. It is nonetheless a familiar shorthand for the past 25 years of increasing awareness of flows of refugees, irregular migrants, and asylum seekers, and the reactions to these arrivals in Europe, the US and Australia, but also in countries which are understood as spaces of transition (such as Malaysia, Indonesia, Libya, Mexico). These flows have been met with hostility and there are detention centres across Europe, across North America, in Asia, and in Australia. The legalities surrounding systems differ locally, but we can see similarities in experience for those who are subject to them.

As described below, there is also offshore detention, which places detainees offshore, outside the national boundaries of the state that wishes their exclusion. This further diminishes their access to the rights of other prisoners or to citizens otherwise held. To be held in immigration detention is to enter a state of exception, and to enter immigration detention offshore intensifies that precarity.

Offshore detention has two characteristics which challenge international understanding of refugee rights. Two historical moments may exemplify these issues. First: the Italian / EU practice after 2008 of refouling (sending back) asylum seekers and irregular migrants to Libya, where they were often returned to detention facilities (described by eye- witnesses and former inmates as highly dangerous environments). Refoulement contravenes (law) as the expectation is that asylum cases are determined individually, not in

batches. The United Nations Convention on Refugee Rights (Article 33) explicitly outlaws this approach: Under international human rights law, the principle of non-refoulement guarantees that no one should be re-turned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm. This principle applies to all migrants at all times, irrespective of migration status. Second: the Australian case-study is relevant for the European situation as it globalised the notion of mass refoulement to a third country, whilst also tying the threat of offshore detention to deterrence. France is similarly known for offshore or ‘outre-mer’ detention practices, but uses its colonial network of territories rather than financial agreements with smaller nations (as in the Australian case). The flow of asylum seekers, refugees, and other irregular migrants should be understood as a global network of forced migration. The push factors – climate stress, hoped-for economic opportunity, war, religious or political persecution – that send men, women, and children on boats to Australia, are the same factors that increase irregular migration flows to Europe. It is not surprising that receiving governments copy each other’s policy responses, although it is depressing that they seem to pick the lowest denominator of care in so doing.

Key Sources

Global Detention Project www.globaldetentionproject.orgUnited Nations Human Rights Commission (Global Compact on Refugee Rights)https://www.ohchr.org/en/ohchr_homepage

Campesi, Giuseppi. ‘Genealogies of Immigration Detention: Migration Control and the Shifting Boundaries Between the “Penal” and the “Preventive” State’, Social and LegalStudies, 2020 Vol 29(4): 527-548.

Fordham, Michael, Justine N. Stefanelli and Sophie Eser. ‘Immigration Detention and theRule of Law: Safeguarding principles.’ British Institute of International and Comparative Law.

https://www.biicl.org/documents/25_187_immigration_detention_and_the_rol_-_final_for_web.pdf