Humanitarian Penality: Punishment in an Era of Mass Migration

Post by Mary Bosworth, University of Oxford

Yesterday’s news reports that the UK is planning on building a £25 million pound prison in Jamaica in order to return Jamaican nationals serving prison sentences in the UK is just the most recent example of the growing policy intersections between criminal justice, migration control and foreign affairs. In a forthcoming article I explore the implications of these transnational initiatives, focusing on the involvement of the British government in Nigeria and Jamaica. In this post I outline some of their characteristics and implications for our understanding of punishment. 

While criminologists have traditionally not paid all that much attention to foreign policy, it is increasingly clear that the criminal justice policy may have global repercussions. While so far most of our attention has been paid to the individual experiences of the global nature of punishment, the Jamaican prison example reminds us of the importance of policy and politics in understanding such matters.

This is not the first time that the government has funded prisons abroad. In 2012, for instance, a new wing of Kiri Kiri prison in Lagos, Nigeria opened that was funded by the British government under the ‘Returns and Reintegration Fund’ (RRF). Through the same funding mechanism, the government also contributed towards the training of Nigerian prison officers and the purchase of new equipment for the Nigerian Prison Service. That year, in Jamaica, the British High Commission released a DVD, ‘Coming home to Jamaica,’ alongside a revised booklet of the same name aimed at those removed or deported from Britain. Through the Returns and Reintegration Fund they supported the fledgling National Organisation for Deported Migrants (NODM) while also paying for a variety of prison programs from pastry courses for female young offenders to a chicken farm in a prison for sex offenders.

The RRF, which falls under the rubric of ‘managing migration,’ is chaired by the Foreign Office (FCO), and includes civil servants from the Home Office, the Ministry of Justice and DFID, each of whom (other than DFID), also pay into it. This fund, supports a variety of initiatives around the world, delivered by a series of state and non-state actors, including the FCO, the British Council, and NGOs like Hibiscus. This fund is replicated at the EU level, with similar purpose and effect. 

Imprisoning Abroad: Jamaica and Nigeria

Currently there are around 11000 foreign nationals serving prison sentences in England and Wales. Constituting around 14% of the total population, this sum has remained fairly stable over the past few years, after it expanded considerably in the first decade of the 21^st century. For many years, the British government has sought to expedite the ejection of as much of this population as possible. While various pieces of legislation now require mandatory deportation of many foreign offenders and consideration for deportation of them all, this method has its drawbacks. Locking people up is expensive. Having them removed during their sentence would be far more cost-effective for the British state.

In another context, political theorist Matthew Gibney has observed that it is difficult to enforce deportation. While his work is concerned with the ethical aspects of migration policy, British investment in the criminal justice systems of Nigeria and Jamaica shows quite clearly that governments struggle to make people leave as well.

Britain has signed a number of voluntary transfer agreements, the terms of which, in regards to sentencing, can appear quite generous. Prisoners who agree to go, can apply for financial assistance, and are likely to have considerable time reduced from their period of custody. Even so, few take up this offer. In 2014, for instance, the Telegraph reported that ‘[j]ust 17 foreign criminals have been sent home to serve their sentences under a treaty that was intended to clear Britain’s jails of mainland European offenders.’ ‘The EU Prisoner Transfer Agreement was signed by Britain and 17 other member states and came into force in December 2011,’ the article goes on. Since then ‘three Belgians, a Latvian, a Maltese and 12 Dutch prisoners have been sent home. Ten were guilty of drugs offences, three of sexual offences, one for causing death by dangerous driving and one for a stabbing.’

Under these circumstances, Britain, along with other governments, has been searching around for more coercive alternatives. In this search, they face a number of barriers both at home and abroad. While they have been fairly successful in whittling down foreign offenders’ right to family life, the prison conditions abroad pose more of a problem. Legislative constraints elsewhere are also significant. Nigeria illuminates both matters.

The UK has long sought to send back serving Nigerian prisoners to free up space and reduce the cost of running prisons in England and Wales. They faced two significant barriers however: the Nigerian constitution and the European Court of Human Rights. Under Nigerian law, only those who agreed to return could be taken. Nobody could be forced to serve out their British sentence in Nigeria.

British politicians and policy makers were also vividly aware the conditions in Nigerian prisons failed to meet acceptable Human Rights standards.  Numerous reports, by Amnesty International, Human Rights Watch, the US government and the Foreign Office attested to widespread overcrowding, violence and base living standards. According to the US State Department Human Rights Report (p. 6) on Nigeria,

Prison and detention center conditions remained harsh and life threatening. Prisoners, a majority of whom had not been tried, were subject to extrajudicial execution, torture, gross overcrowding, food and water shortages, inadequate medical treatment, deliberate and incidental exposure to heat and sun, and infrastructure deficiencies that led to wholly inadequate sanitary conditions and could result in death. Reports indicated guards and prison officials extorted inmates or levied fees on them to pay for food, prison maintenance, and prisoner release. In some cases female inmates faced the threat of rape. Female prisoners pregnant at the time of incarceration gave birth to and raised their babies in prison.

The vast majority of prisoners in Nigeria are held without sentence, some of them for many years at a time. Anyone at risk of being forced to return to such conditions would have had a cast iron case in Strasbourg.

After much negotiation, the British government came up with a plan: build a prison and persuade the Nigerian government to change their constitution. Five years after the announcement by then chief Executive of UKBA, Lin Homer in Parliament of plans to invest in Nigerian prisons in order to send home the hundreds of serving Nigerian prisoners in the UK, on the 10 January 2014 Nigerian government signed an agreement with the British government providing for the compulsory transfer of prisoners between the two states. Eighteen months later, Nigeria has yet to receive a single prisoner transfer. The building, instead, is being used for local prisoners.

Conclusion: Humanitarian penality?

The initiatives in Nigeria reveal in quite concrete ways how the criminal justice system and the immigration system have become interconnected.  They also illuminate how the goal of migration control allows penal power to move beyond the nation state. As such they have implications for our understanding of punishment and for its application.  

On the one hand, as is so often the case when thinking about migration control, they reveal the urgency with which the British state wishes to be rid of (certain) foreign nationals, and its limited ability to do so. Nigeria has yet to receive a single serving prisoner. The British government paid all that money for nothing.

These sites and initiatives also demonstrate how punishment is flexible and changing. The penal state creeps forwards and outwards though non-criminal justice personnel. In this movement, human rights protections appear as barriers to deportation that can be breached by better conditions, training, machinery, personnel. 

Under the RRF, the British Council delivers education programs on justice and governance to organisations with patchy histories of brutality and corruption. The government funds new schools as well as criminal justice practices. Such offerings are simultaneously aimed at capacity building and control. Is penal humanitarianism no more than postcolonial penal expansion?

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How to cite this blog post (Harvard style)

Bosworth, M. (2015) Humanitarian Penality: Punishment in an Era of Mass Migration. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2015/10/humanitarian (Accessed [date]).