Detention Of Non-citizens Research Articles

There was an old lady who swallowed a fly: progressively more troubling amendments to the Australian Migration Act

ABSTRACT The Migration Amendment (Clarifying International Obligations for Removal) Act 2021 sought to remedy failures of previous amendments contained in the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Despite both amendments, the Migration Act 1958 continues to provide for the indefinite detention of non-citizens, an existing human rights concern which the later amending legislation had sought to address. This paper illustrates how the enactment of these amendments constitutes poorly conceived quick fixes that exacerbate rather than remedy Australia’s breaches of international obligations. Akin to the oft repeated nursery rhyme ‘there was an old lady who swallowed a fly’, then a spider to catch the fly, and a bird to catch the spider, the series of amendments discussed fail to address the initial problem—indefinite detention—while each exacerbates that failure with increasingly complex yet ineffective solutions. This paper argues that amending the fundamental failure of the Australian Migration Act to offer protection to non-citizens owed non-refoulement obligations requires more than changes to s 197C introduced in later amendments. It requires changes to the ‘good character’ provisions contained in ss 36 and 501 to ensure that individuals owed non-refoulement obligations by Australia are granted protection visas.

Immigration detention as a routine police measure: Discretionary powers in preemptive detention of noncitizens in Finland

AbstractThis article discusses how administrative practices shape immigration detention policies, addressing both administrative discretion in detention orders and their judicial supervision. Due to vaguely formulated legal criteria and ineffective ex-post judicial supervision, the authorities have considerable discretionary powers in ordering detentions for noncompliant and criminalized noncitizens. Instead of being a measure of last resort, immigration detention is used in a routine manner, with little individual assessment, for the enforcement of removals and the prevention of irregular migration, as well as extensively for crime prevention. The findings demonstrate the role of the police as the main actor in the detention system in Finland, with significant implications for the formation of detention policies.

Immigration detention as a routine police measure: Discretionary powers in preemptive detention of noncitizens in Finland  

Immigration detention as a routine police measure: Discretionary powers in preemptive detention of noncitizens in Finland  

Globalizing Noncitizen Detention

This inquiry seeks to establish that the global expansion in regimes of noncitizen detention represents a contemporary expression of imperial subjectification under Western liberalism and that such regimes serve a key role in maintaining the capitalist social order. While several efforts have been made to explain the globalization of noncitizen detention practices stemming from the United States, there exists serious shortcomings in the proposed analyses. Namely, existing literature on the subject has failed to adequately account for the history of Western imperialism and the centrality of liberalism as a political ideology in this imperial project. By intervening in the existing analyses with scholarship on liberalism and its role in maintaining the capitalist social order, we can construct a clearer picture of how and why regimes of noncitizen detention have spread across the globe.

Across the Sloping Meadow Floor: An Empirical Analysis of Preremoval Detention of Noncitizens

In many countries, the law permits state authorities to detain noncitizens before deportation. Typically judicial decisions about preremoval detention must be made within a short period of time during which deportable noncitizens are held in police premises, and depending on the country detention may last just one month (e.g., France) or up to 18 months (the Netherlands). While previous research has explored various dimensions of noncitizen detention including the legal procedure, health consequences, the condition of detention centers, and the lives of deportable noncitizens, the empirical assessment of the determinants of decisions on preremoval detention are largely unexplored. Using data from court proceedings of police petitions of detention in Spain and a quantitative strategy, in this article we undertake an empirical analysis of noncitizen detention combining personal background of deportable noncitizens, legal factors of the case, and the behavior of different actors involved in the procedure. To do it, we fit models that take into account variation occurred at judicial district levels. Results indicate, on the one hand, that relevant actors involved in the procedure use different informational cues to decide on cases. On the other hand, the role of prosecutors and attorneys during hearings proves also relevant to predict detention.

Habeas and the Accumulation of Judicial Power

This article situates Chapter 3 of Nasser Hussain’s The Jurisprudence of Emergency within the broader reassessment in recent years of the history of habeas corpus in England during the seventeenth, eighteenth, and nineteenth centuries. As it demonstrates, not only was Hussain ahead of his time in highlighting the means by which habeas became a tool not for the promotion of individual rights, but for the accumulation of judicial power and the concomitant normalization of emergencies; one can also see clear reflections of his analysis in the jurisprudence of U.S. courts arising out of the detention of non-citizens at Guantánamo.

Judges Without Attributes? The Political Economy of Detention of Deportable Non-Citizens

The aim of this paper is to provide an explanation of the variation in pre-removal non-citizen detention decisions by lower-court investigating judges under a civil-law system. To do so, we combine the attitudinal and strategic models of judicial behavior, arguing that given the structure of career incentives among lower-court judges, the role of policy preferences depend on the strength of such incentives. Using a natural experiment, this model allows to estimate the effect of individual-level policy preferences and career incentives on decisions regarding the detention of non-citizens before they are deported. Futhermore, it also allows for the integration of the informational cues that previous research had observed to influence such decisions. We find that policy preferences make a difference in the chances of a judge sending non-citizens to a detention center, and that this effect peaks when judges have lower incentives to comply with the official policy on detention. We also find that female judges are more sensitive to the effects of career pressure (and therefore to policy preferences) than male judges.

Across the Sloping Meadow Floor. An Empirical Analysis of Detention of Deportable Non-Citizens

In many countries, the law permits state authorities to detain non-citizens who have pending deportation orders. As a measure against the right of liberty, international law, the EU legal framework and states establish a number of procedural safeguards, such as legal aid and judicial review. Typically the judicial decision about detention must be made within a short period of time during which deportable non-citizens are held in police premises, and depending on the country detention may last just one month (e.g., France) or up to 18 months (the Netherlands). While previous research has explored various dimensions of non-citizen detention including the legal procedure, health consequences, the condition of detention centers, and the lives of deportable non-citizens, the empirical assessment of the determinants of decisions on deportation are largely unexplored. Using data from court proceedings of police petitions of detention and a quantitative strategy, in this paper we undertake an empirical analysis of non-citizen detention combining personal background of deportable non-citizens, legal factors of the case, and the behavior of different actors involved in the procedure. To do it, we fit multilevel logistic regression models that take into account variation occurred at both court and judicial district levels. Results indicate, on the one hand, that relevant actors involved in the procedure use different informational cues to decide on cases. On the other hand, the role of attorneys during hearings proves also relevant to predict detention.

The Study Area

The Study Area

Noncitizen Detention: Spatial Strategies of Migrant Precarity in US Immigration and Border Control

Les services d’immigration et de douane des États-Unis (ICE) sont à la tête du plus grand système d’enfermement national, fait peu anodin dans le pays détenteur du système carcéral le plus important au monde. Cet article analyse le système de rétention des étrangers des États-Unis comme un ensemble de stratégies spatiales à travers lesquelles l’État vise la gestion et la réorientation de la migration internationale. Si la rétention participe à la fois de l’enfermement, de la ségrégation, et de la catégorisation des corps des migrants, elle est aussi l’expression performative de l’État. En conséquence, elle a des effets qui dépassent l’expulsion. Cet article résumera en premier lieu la manière dont la rétention prend appui sur le système de justice pénale et contribue en même temps à son extension. Puis je m’appuierai sur mes recherches sur l’enfermement des non citoyens et les programmes de visite pour démontrer combien la rétention ne se réduit pas à l’immobilisation des corps dans l’espace, mais qu’elle relève d’un processus d’isolement, de criminalisation et de marginalisation. Je montre que la rétention ne peut être analysée et comprise seulement dans son lien à l’expulsion et qu’elle joue un rôle dans la production de la précarité des migrants et dans le contrôle de l’immigration et des frontières.

Protecting The Public? Challenging the Indefinite Preventive Detention of Non-Citizens

This paper examines the indefinite preventative detention of non-citizens in the UK, arguing that the reasoning of the House of Lords in A v Secretary of State for the Home Department has not been applied within the crime control context. This paper analyses the jurisprudence in relation to indefinite preventive detention in the (non-terrorism) immigration context, arguing that whilst ideas emerging in anti-terrorism law have influenced immigration law, in a wider context, beyond terrorism, the internal logic of immigration control which justifies its discriminatory coercion with assertion of the sovereign right of the state to exclude aliens, has caused resistance to the reasoning of the majority of the House of Lords in A in regard to the preventive detention of non-citizens. It contends that the UK’s reliance on these principles is undermined by the fact that the UK has exercised its sovereignty to expressly limit it through its ratification of the European Convention on Human Rights and other international human rights instruments.

‘Catch and Remove’: Detention, Deterrence, and Discipline in US Noncitizen Family Detention Practice

Critical security scholars have argued that biometric identity technologies, databanking, digital surveillance, and risk analysis reveal not a blockaded boundary but a border that follows transboundary migrants as they move within and between national territories. Managed through risk-based technologies, this networked, contingent border respatialises inclusion and exclusion, forming a border that is potentially everywhere and nowhere in particular. At the same time, immigration scholars have shown how immigration authorities deploy policing, inspection, and identification practices both within and beyond territorial boundaries, making life increasingly uncertain for noncitizens. In the US, Immigration and Customs Enforcement's (ICE) authority to detain noncitizens has become a key spatial strategy in domestic counter-terrorism, interior immigration enforcement and border securitisation. Thus, transboundary migration and state responses to it trouble analytic distinctions between domestic and foreign policy, immigration and national security, the border and the interior. This paper builds on recent work in immigration geopolitics to analyse how detention, in particular, works to contain individual migrants and deter future migrants. Focusing on noncitizen family detention, this article situates US noncitizen detention in a broader milieu of pre-9/11 US immigration enforcement law and post-9/11 security practices. I then analyse how detention congeals a number of spatial strategies – remoteness, isolation, spatial ordering, inter-centre transfers, and criminalisation – that work to destabilise migrants' support networks. Modulated with digitised border and identity surveillance technologies, detention foregrounds the persistence of disciplinary tactics in risk-dominated security regimes.

Pursuant to Deportation: Latinos and Immigrant Detention

This essay explores the historical genealogy of Latino immigrant detention in the United States. As a critical enforcement practice within the history of racialization and criminalization of nonwhite immigrants in the US, noncitizen detention pursuant to the deportation of immigrants has been utilized throughout the 20th century at the nexus of national crises, xenophobia, and racism. While episodes of detention expansion are often viewed in light of particular national security crises, this essay discusses the parameters and societal impacts of Latinos in detention, as a process possessing historical continuity, links to other racialized immigrants, and one that underscores the structural inequality of all noncitizens, documented and undocumented, before the law.

Detaining the Displaced

Over last few years, public has become increasingly aware of fact that many asylum seekers are imprisoned by very states they flee to search of protection. In February 2002, Australian citizens, including members of church and community groups, organized demonstrations to protest Australian government's policy of mandatory (1) Earlier this year about 240 mostly Afghan asylum seekers at Australia's infamous Woomera detention centre staged a two-week hunger-strike to protest their treatment and a group of Iraqi asylum seekers reportedly dug their own graves to protest their imprisonment Woomera. (2) In U.S., religious leaders publicly criticized U.S.'s mandatory detention of arriving asylum seekers, and press and human rights groups have criticized U.S.'s detention of children--citing, most recently, detention of a disabled teenage asylum seeker from Guinea adult criminal jails for over a year. (3) In wake of September 11 attacks New York and Washington, D.C., some countries have proposed or passed harsh new laws that call for increased detention of non-citizens. The anti-immigrant rhetoric many countries has escalated, at times targeting individuals of Arab or Muslim background. Asylum seekers, often victims of human rights abuses themselves, are more vulnerable than ever current climate. The Executive Committee of UNHCR, Conclusion 44, has denounced arbitrary detention of asylum seekers, stressing that detention should normally be avoided and should be resorted to when necessary and grounds prescribed by law. This is hardly a surprise given Refugee Convention's prohibitions against restricting refugees' movements and prohibitions against arbitrary detention under International Covenant Civil and Political Rights (the ICCPR). In February 1999, UNHCR issued its Revised Guidelines Applicable Criteria and Standards Relating to Detention of Asylum Seekers (the UNHCR Detention Guidelines). The UNHCR Detention Guidelines affirm that [a] s a general rule, asylum seekers should not be detained, and that the use of detention is, many instances, contrary to norms and principles of international law. (4) Urging a presumption against detention, UNHCR Detention Guidelines state that viable alternatives to detention ... should be applied first unless there is evidence to suggest that such an alternative would not be effective an individual case. When a decision to detain is made, Detention Guidelines recommend that such a decision only be imposed a non-discriminatory manner for a minimal period and that procedural guarantees be provided for, including review before a judicial or administrative body independent of detaining authorities and subsequent regular periodic reviews of necessity for continuance of detention. (5) Some states aspire to meet their obligations under international law and standards. Others do not. The articles this volume of Refuge, as well as one article to follow Volume 20.4, examine detention practices of a number of different states--closely examining mandatory detention regimes of Australia and United States, as well as detention practices of Canada, Mexico, and South Africa. Some of these articles address impact of detention vulnerable populations, including children and survivors of torture. The articles also highlight impact of post-September 11 security concerns debate over detention of asylum seekers and detention of individual asylum seekers. As detailed Jaya Ramji's article South Africa's detention system, South African law relating to detention of asylum seekers strives to meet that state's obligations under international law. But law's high aspirations on paper are not met in practice. One striking example concerns South African law's provision of automatic review of detention of asylum seekers by a judge of its High Court. …