Guest post by Michael Flynn, Director of the Global Detention project. A version of this essay appears in the concluding chapter of the forthcoming book, Challenging Immigration Detention: Academics, Activists, and Policy-makers (forthcoming Edward Elgar 2017), edited by Michael Flynn and Matthew Flynn. This is the eighth instalment of Border Criminologies’ themed series on 'Immigration Detention in an Era of Mass Mobility' organised by Mary Bosworth.
There are intriguing parallels between the work of prison inspectors and that of mental health professionals working in detention centres—neither are mandated to question overall immigration policy but the nature of their work can inevitably challenge the systems in which they work. While inspectors are tasked with ensuring that detention facilities meet basic standards, mental health professionals attend to the psychological well-being of detainees. Both sets of practitioners seek to make detention bearable, which can lead them to 'challenge the exercise of power.' Such has been the case with mental health providers in Australia’s detention centres, as Stephen Brooker, Steve Albert, Peter Young, and Zachary Steel detail in their chapter, 'Mental Health Care in an Invalidating Environment: The Case of Immigration Detention in Australia.' The four co-authors have extensive experience working with immigration detainees, including at its notorious offshore detention centres on Manus Island and Nauru. One of the authors, Peter Young, previously the head psychiatrist for the private company contracted to provide health services at detention centres, faced an intense backlash in Australia, including invasive police tactics like accessing his personal phone records, after he spoke out about abuses in detention centres. The authors note the secrecy surrounding immigration detention in Australia, where 'it is a criminal offence for employees to disclose entrusted information that may include details of the clinical environment or care practices within detention.' They add that privatization of detention services 'has the effect of further obscuring many aspects of immigration detention policy and practice under commercial in confidence arrangements.' Among the issues they highlight is that 'Mental health care within detention occurs within a broad battleground between those who maintain that the existing system and operational policies of immigration detention … and those on the other side who believe the system is arbitrary, unsafe and an abuse of human rights.' They outline specialized models and practices of care for what they term the 'invalidating environment' of immigration detainees, concluding that the work of mental health professionals provides 'an important framework for better understanding the corrosive nature of immigration detention and suggests a range of clinical responses to better support the mental health of persons subject to detention.'
Two flourishing bodies of work on immigration detention have emerged from the disciplines of geography and criminology, where there is a natural connection between the detention phenomenon and their more traditional subject matters. Interestingly, both Mary Bosworth’s chapter on the emerging subfield of 'border criminology' and Deirdre Conlon, Nancy Hiemstra, and Alison Mountz’s chapter on geographical perspectives on 'spatial control' hone in a similar themes: the intimate connection between immigration detention and criminal incarceration, and the acts of resistance of detainees. For Bosworth, who has logged countless hours inside detention centres in the UK and elsewhere, 'in their resemblance to prisons and in their policy overlaps, detention centres are becoming increasingly entrenched and inevitable.' To challenge this reality, criminologists investigate the 'sources of legitimacy' of immigration detention, thereby crystallizing 'detention’s lack of humanity. These are places designed to exclude and expel. They do so by refusing to acknowledge our ties with those within. Border criminologists seek to document the testimonies of detainees to 'shed light on what this experience feels like, thereby illuminating the changing nature of penal power that has shifted from reintegration to expulsion. Fieldwork also reveals what is at stake. Notwithstanding their vulnerability, many detainees seek to resist; their accounts remind us that people even in the most abject of situations attempt to negotiate power relations.' The NIYA activists described by Muñoz and Young would doubtless sympathize with much of this analysis.
In their chapter describing the scholarship on detention in the discipline of geography, Conlon, Hiemstra, and Mountz highlight several concepts that are also reflected in the views advanced by sociologists and mental health practitioners: resilience and agency. By focusing on a range of 'scales of analysis,' geographers help uncover hidden aspects of the detention phenomenon, like the 'acts of resilience and agency that take place in the midst of the turmoil and uncertainty of detention.' They write that by calling attention 'to the ways border enforcement—across a range of scales and sites—connects to detention' geographers provide 'knowledge that extends opportunities for advocacy and activism, and links groups working in distinct situations and disparate locations.'
The chapters on geography and criminology also have in common themes highlighted in the works by Matthew Flynn and Nicholas De Genova—the economies of immigration detention, including the role of privatization. According to Flynn, political economy offers unique tools and perspectives for analyzing the growth of immigration detention systems by highlighting the changing economic structures, the winners and losers of policy choices, and the motives of social actors involved in these decisions. These assessments, writes Flynn, point to a key challenge common to countries across the globe: how the economic insecurities of host populations are translating into xenophobia and ethno-nationalist trends that are driving the demand for immigration detention and control. However, he sees an opportunity in the now-stalled move away from private prisons in the United States, arguing that demonstrating that the high cost in both monetary and social capital of locking up immigrants is counter-productive could prove an increasingly effective argument.
Nicholas De Genova in contrast does not look at the impact of economics but rather what he terms the 'economy of detainability.' His chapter is an exploration of how to consider the concept of immigration detention using critical theory. Employing the Foucauldian concept of 'economy of power,' De Genova writes that he is interested “in how a wider social field encompassing both ‘economics’ and ‘politics’ involves an unequal distribution of rationalities, techniques and technologies that make migrants subject to detention, and thereby administers and governs them through that uneven distribution of their detainability, their greater or lesser susceptibility to detention.” De Genova does not propose a specific challenge to this power, rather he describes a totalitarian existence, which can serve as a wake up call about the physical and existential suffering of others. “Vexed with precautions and often overshadowed by a diffuse but persistent terror—the fear of detection, arrest, detention, and deportation—those who are subjected to the prospect of detention are subjected to a banal (pseudo-) ‘administrative’ power that in fact conceals a brute authoritarianism. This seemingly mundane and merely bureaucratic condition invariably reveals its absolutist character by enforcing a condition of indefinite waiting and being made to live with protracted uncertainty—even if it is never activated in the form of an actual detention.”
A focus on the geography of detention can also reveal important variations in detention trends as well as opportunities for activism and legal strategies. For instance, as Pablo Ceriani, a member of the UN Committee on Migrants Workers and professor at the University of Lanus in Buenos Aires, points out in his chapter, South America—despite some recent setbacks—is unique among all geographical regions of the world in de-emphasizing detention and other immigration control practices. He explains this puzzle by pointing to regional freedom of movement agreements and other exceptional characteristics of the region. However, instead of viewing South America as an anomaly, he argues that a close reading of international legal standards reveals that Sough America should in fact be the norm as it is practically impossible to legally justify immigration detention based on these standards.
The European Union contrasts sharply with South America as its Member States have burgeoning immigration detention systems as well as a regional legal framework that explicitly provides for this form of detention. This is the subject matter of the chapter by Galina Cornelisse. She argues that the increasing regulation of immigration detention in European Union law has led to more constitutional protection for detainees. This “constitutionalisation” has resulted in part from the dynamics between EU law and human rights law established at the level of the Council of Europe. The complementary relationship between these two legal orders may also contribute to higher standards of protection for immigration detainees. However, denser regulation on the transnational level has at times also resulted in inconsistency, with negative implications for the rights of immigration detainees in Europe. She concludes arguing that to ensure increased constitutionalisation of detention requires vigilance and effective litigation.
Mariette Grange and Izabella Majcher, researchers at the Global Detention Project (GDP), build off the work of Ceriani in showing how treaty bodies like the UN Committee on Migrants Workers can be strategically targeted to contest detention policies, an effort that has become a key aspect of the GDP’s work. The authors detail how the emergence of immigration detention as a global phenomenon has taken place against the backdrop of the consolidation of the international human rights and humanitarian legal regimes, raising intriguing questions about the relationship between these phenomena. Their chapter provides a comprehensive normative framework relevant to immigration detention based on the provisions contained in a web of relevant international and regional treaties. It then assesses the implementation of these norms in various regions based on the reports of key monitoring bodies and human rights mechanisms. The authors conclude with a comparative assessment of the impact and implementation of fundamental norms, underscoring gaps in the international protection regime and highlighting how states’ responses to this regime has helped shape contemporary immigration detention policies.
Lastly, Daniel Wilsher, a law professor and immigration judge in London, focuses the challenge to immigration detention on its primary matter: the protection of the right to liberty. 'The protection of individual liberty against arbitrary detention by the state is one of the foundations of liberal jurisprudence,' writes Wilsher. His assessment of the relevant laws in several major detaining countries—France, Canada, the United States, Australia, the United Kingdom—reveals the varying degrees of constitutional protections afforded detainees. In particular, he finds that civil law countries like France tend to offer higher standards of protection than common law countries. Nevertheless, he concludes that in general courts in these countries have found it difficult to draw clear boundaries around detention. This has allowed governments to extensively expand detention systems.
Wisher’s chapter highlights a tension that runs through many of the pages of Challenging Immigration Detention, and indeed through real-life efforts to challenge immigration detention: the divide that can emerge between efforts to promote the right to liberty and efforts to protect the right to security of person of those in detention. Although these norms overlap in both law and practice, the right to liberty is closely related to the question of whether states can lock up people for migration-related reasons while security of person involves, inter alia, the appropriate treatment of detainees. This division rests on a fundamental normative distinction provided in the International Covenant for Civil and Political Rights (ICCPR), one of the key UN human rights treaties, which went into force in 1976 and has been ratified by all but a small handful of states. Article 9(1) of the ICCPR provides: 'Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.'
Can advocacy on behalf of one set of these norms unduly impact protection of the other? For instance, there is cause for concern that a narrow focus on improving the treatment of detainees can help rationalize the practice of immigration detention, providing states with normative cover for their continued efforts to deprive non-citizens of liberty and helping ensure the vitality of detention regimes into the future. Returning to the case of the United States and the struggle to end the detention of children and families, during a conversation with an Obama administration official during the early reform years, the official highlighted to me how ICE had made great strides in limiting the use of prisons by gradually replacing these with 'civil' detention centers. The case he focused on was the Karnes detention center near San Antonio—what he called the first 'civil detention facility' in the United States—which had recently opened under the operation of the private prison company the Geo Group.
ICE has tried to use carefully selected cases to show the impact of its reforms, and until recently this effort to put a comfortable face on immigration detention appeared to be paying off. A case in point was a comment made by a UNHCR official in early 2011 describing the Berks County Family Shelter detention center in Pennsylvania as the embodiment '” of the best practices for a truly civil immigration detention model.' The official explained that while 'UNHCR believes strongly that the vast majority of asylum seekers should not be detained,' in the event that families should be detained, Berks was the model to follow.
We of course should applaud efforts to improve the treatment of people in detention. But is it a good idea for the international community’s premier agency protecting asylum seekers to provide its imprimatur to efforts—even limited ones—to detain them? Likewise, shifting detainees from criminal prisons to dedicated facilities does indeed represent an improvement. But is the creation of new facilities operated by private entities who have an incentive to keep beds full a positive outcome?
In contrast to the United States, most European countries ceased some time ago to use criminal facilities for the purposes of immigration detention, and the EU Returns Directive—described by Cornelisse and other contributors to this volume—provides that member states must use specially planned facilities for confining people as they await deportation. But the process of shifting from informal to formal detention regimes, which has occurred over the last two decades, has paralleled the growth in immigration detention in this region.
Is there a connection between these two developments?
Close observers of immigration detention have long realized that if you provide more beds, there will be an inexorable push to use them. The key question to ask is: How can those attempting to challenge detention pressure governments to improve their treatment of detainees while at the same time encouraging them to limit their reliance on detention as a tool of immigration control?
This is not an easy question to answer. But arguably any campaign aimed at reforming a state’s custodial arrangements for immigration detainees must have as an integral component working to constrict that country’s detention activities. Absent such a component, efforts to challenge immigration detention regimes may lead regimes to become kinder and gentler even as they grow. In this way, the challenge to immigration detention must have many sides to be effective, and thus assessing this challenge from an interdisciplinary perspective is an important step forward.
You can read part I here.
How to cite this blog post (Harvard style)
Flynn, M. (2017) Putting Immigration Detention in Interdisciplinary Perspective (Part II). Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/05/putting-0 (Accessed [date])