Post by Laura Cleton, PhD candidate in Political Science at the University of Antwerp. Her research deals with the production of migrant deportability in return policies in the EU, focusing specifically on the Netherlands and Belgium. She is on Twitter @LauraCleton.

Review of Policing Undocumented Migrants. Law, Violence and Responsibility by Louise Boon-Kuo (Routledge, 2018)

Given the increasing policing of mobile people across the globe, questions about the legitimacy of state power to regulate migration and the allocation of responsibility for such regulation are continuously brought to the forefront of academic debates. Whereas researchers like Sharma and Balibar have convincingly shown that regimes of migration control produce global systems of ‘apartheid’, less research has interrogated how law works to marginalise the voices of those subject to migration control provisions. Policing Undocumented Migrants takes up this task by highlighting immigration enforcement in Australia. Boon-Kuo questions how Australian migration and criminal law allocates responsibility to migration officers and outlines the consequences of internal policing for the lives of non-citizens.

The book covers a variety of themes, such as the law’s delegation of discretion to individual immigration officers, the practical use of migration powers, how migration practices become authoritative and how individual officers are accountable for their actions. Most prominently, it sets out to record the violence that migration law inflicts on individuals by centring discretionary legal authority. Boon-Kuo’s core argument is that ‘migration law and policy is organised in ways that effectively marginalises responsibility for its violence’ (p. 4). In unpacking this claim, she provides a deeper understanding of how different branches of law intersect and produce various forms of inclusion and exclusion through spatial, temporal and social ordering. She does so by elaborating on four case studies that highlight how police and immigration officers exercise power that ‘make people illegal’, a term she borrows from Dauvergne. Policing Undocumented Migrants effectively shows that a focus on law, policies and its effects ‘alone’ reveals a great deal about how their provisions affect the lives of illegalised migrants. Her first chapter outlines the book’s conceptual orientation and draws on policing and administrative law scholarship. It argues that to understand how migration law’s violence is authorised, we must analyse two essential conditions in the Australian legal order: discretionary authority and plural legalities in immigration policy.

Boon-Kuo first examines discretionary authority in chapter two, where she focusses in particular on coercive migration policing powers in immigration ‘arrests’, detention, and regulation. She outlines in detail how police and migration officers hold similar powers yet exercise them in different manners with different consequences. By taking detention as a case example, Boon-Kuo outlines how low-visibility arrests based on ‘reasonable suspicion’ and vague powers allocated to police officers marginalise recognition of the violence produced in these encounters. It leads to the legal production of what Veitch calls ‘zones of non-responsibility’ in which legal institutions themselves enable non-responsibility for large-scale human suffering and human rights violations. She illustrates this by using Alldridge’s ‘snapshot’ metaphor that illustrates that the Australian legal framework determines responsibility for the use of power and recognition of harm based only on a ‘snapshot’ of moments, rather than looking at sequences of police power.

By zooming into cases of raids, searches and rapid removals in chapter three, Boon-Kuo further demonstrates how migration law marginalises its violent dimensions and disregards non-citizen experiences of such practices in the process of implementation and enforcement. Indeed, she holds that ‘it is hard to know the extent of wrongdoing or violence by officers in migration policing because it leaves so little trace on the official record’ (p. 84). She suggests that the law permits officers to prolong or speed up migration enforcement procedures – to a point where officer behaviour could be considered misconduct. As officers repeatedly have engaged in such prolonged or sped up practices over time, they succeeded in deciding the boundaries of their own authority.

Chapter four highlights Australia’s ‘bridging visa’, which provides temporary legal status to those waiting for decisions granting a visa or for the enforcement of their removal. The chapter interrogates the lived realities of those residing on bridging visas as a move from ‘small detention to big detention’, as one of Boon-Kuo’s interviewees aptly describes. She shows how the ‘release regime has enabled the constraint of liberty in community settings, and mobilised legal status as mechanisms of selective and arbitrary control’ (p. 113). In this chapter Boon-Kuo specifically looks at three facets that continuously produce ‘marginally legal persons’: sponsorship requirements, regulations on work rights, and a ‘Code of Behaviour’. Resembling studies like those of Menjívar and DeBono et al. that highlight how non-citizens deal with their condition of deportability, Boon-Kuo illustrates how these facets foster internalised surveillance, as such requirements change non-citizens’ day-to-day behaviour and, in some cases, lead to adverse mental health conditions.

In chapter five, Boon-Kuo shifts the focus to visa determination and the so-called ‘character test’. This test, meant to ‘protect Australian values’, is based on an assessment of general and/or criminal conduct. The chapter effectively argues that in these assessments, judges rely on certain stereotypical ideas tied to ‘nationality’ to make sense of a visa applicant’s honesty. It shows how ‘common sense’ facets derived from a person’s nationality, for example the existence of ‘emigration networks’ in the Philippines, are treated as authoritative and decisive in assessing eligibility for a visa.

Concluding, Boon-Kuo notes that discretionary authority is the most central element in organising migration legal practices. She pleas for treating it as a source of jurisprudence, as ‘it is the logic of discretion over the policing of status that makes migration “law”’ (p. 184). In her conclusion, she reiterates the widespread belief that ‘discretion is secondary to law in migration’, which she argues to have proven ‘wrong’ throughout her book. This insight, however, is widespread in public administration scholarship since the 1980s, with Lipsky’s work being the most representative, and in migration studies at large such as in the work of Eule et al. What makes Boon-Kuo’s work stand out, however, is that it focusses on how the possibilities for discretionary practices are enabled through the formulation of the law itself. She makes a convincing argument that such discretion embedded within the law potentially has severe and violent consequences for non-citizens in Australia.

The book, however, does not engage with the narratives of immigration officers themselves. Such an addition could have provided more complexity and evidence for the intentionality underlying Boon-Kuo’s argument, by highlighting how officers interpret, use and contest the laws they implement. The wide scope of her book, together with a very close and detailed legal analysis will be of interest to more specialised readers within policing studies, criminology and socio-legal studies, while it might be harder to follow for readers with a more general interest in migration governance and the implementation of migration policy. Nevertheless, Boon-Kuo makes an important contribution to the literature by highlighting how Australian migration law upholds various systems of ‘apartheid’ through different scales of legal frameworks, and the intersections of migration law and criminal law.

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How to cite this blog post (Harvard style) 

Cleton, L. (2020). Book Review: Policing Undocumented Migrants. Law, Violence and Responsibility. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/09/book-review [date]