Immigration Detention Policies Research Articles

Regulating mobility through detention: Understanding the new geography of control and containment at the Southern European border

The aim of this article is to describe the evolution of immigration detention policies at the Southern European border. This will be done by presenting original data on the actual functioning of immigration detention in Italy in the wake of the so-called “refugee crisis”. By shedding light on these developments, the article reveals a notable convergence of first reception and return policies, which in turn is driving a transformation of the landscape of immigration detention leading to a proliferation of detention regimes and spaces of containment. Drawing on the literature on carceral geographies, this development is analyzed within the framework of Italy's distinct role in the geopolitics of EU border control policies. The article ultimately suggests that the immigration detention system has gradually been co-opted by the border control infrastructure, becoming part of a broader and intricate control assemblage whose essential function is the regulation of human mobility.

Environmental Health Rights and Concepts of Vulnerability of Immigration Detainees in Europe Before and Beyond COVID-19

Abstract The global COVID-19 health emergency has radically changed detention spaces, by heightening state and provider obligations to provide humane conditions and protect those detained against disease and subsequent ill-health. Using a socio-legal lens, this policy and practice note focuses broadly on the balance of European immigration detention regulations, and the actual conditions and treatment of immigrant detainees, putting an emphasis on developments before and after COVID-19. The special protections afforded to detainees assessed as vulnerable is unclear in the Global Compact for Safe, Orderly and Regular Migration. While cognisant of aspects of legal positivism by outlining relevant legal provisions and extant European Court of Human Rights (ECtHR) jurisprudence where conditions of detention have violated Article 3, a socio-legal argument is presented around state obligations to protect the health of all immigration detainees; the challenges in using simplistic/categorical definitions of vulnerability; and the imperatives to broaden considerations to include health vulnerability in the context of contagion and future pandemics. By analogy extant ECtHR jurisprudence on the rights of prisoners relating to right to health and disease mitigation (human immune-deficiency, tuberculosis) may offer additional protections. Broad consideration of environmental health factors in light of threats of disease in detention spaces warrant further consideration when establishing the threshold of the severity of conditions and when assessing detainee vulnerability (not limited to age, gender or health status). A public health rights-based argument can shape effective immigration detention policy reform by enhancing protective parameters based on broad definitions of health vulnerability within immigration detention spaces.

Offshore detention: cross-sectional analysis of the health of children and young people seeking asylum in Australia

ObjectiveTo describe the health and well-being of children and young people (CYP) seeking asylum subjected to Australia’s immigration policy of indefinite mandatory detention on Nauru.DesignCross-sectional analysis of a cohort of...

The Impact of the European Union on Turkey’s Policy of Immigration Detention

Abstract In the context of rising populist and nationalist politics amongst some EU states and throughout the world, the EU prides itself on the principle of free movement, and its adherence to a detailed set of human rights norms. However, this dichotomy obscures a more complex reality. The problem is that ‘free movement’ is conceived of, in EU terms, as solely relating to internal movement. When it comes to its external relations, the EU arguably comes to more closely resemble the politics of the critics of ‘free movement’ in the UK and elsewhere. The policy, colloquially known as ‘Fortress Europe’ has been around for some time, and the EU’s response to the refugees attempting to enter via the Mediterranean in recent years has not been defined by a humanitarian approach. Another way in which the EU’s prejudices around non-European migration can be observed is through its external relations with other states. We explore the case of EU-Turkey relations, and by doing so reveal the ways in which the EU has attempted to alter the policies of its partner, and putative member state, in ways that place burdens on migrants rather than relieving them. Turkey as the EU’s ‘candidate’ country has adopted these policies without much debate about alternatives to detention or ethics of detaining people as long as certain standards were met. This candidate-EU relationship, although strained a few years back, has finally led to the readmission agreement in 2015 where immigration detention became the norm.

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.

Somos los Abandonados: Mariel Cuban Stories from Detention and Resisting the Carceral State

Through an analysis of government documents, media sources, migrant testimonies, made objects, and acts of protest, this essay examines the impact of the United States’ indefinite detention of Mariel Cubans—and their resistance—on immigration detention policy and the rise of the carceral state during the Reagan administration. As the United States first detained Mariel Cubans on military bases and then in US prisons, Cubans continually challenged their indefinite detention and US attempts at deportation through legal, political, and poetic claims, as well as uprisings—culminating in a two-week takeover and standoff at two prisons in Atlanta and Louisiana in 1987, the longest prison uprising in US history. Throughout, the Mariel migration remained at the center of the Reagan administration’s immigration and prison policy discussions, ushering in a new era in detention and immigration restriction. This essay also considers the role of Mariel Cuban storytelling as a powerful form of resistance to detention, and the extraordinary anti-Blackness, queerphobia, and criminalization surrounding this migrant group, then and now. It concludes by reflecting on contemporary coalitional efforts to uplift the stories of Cubans recently—or still—imprisoned, some having arrived with the Mariel Boatlift, and possibilities for abolitionist futures.

Incarceration, classification and control: Administrative detention in settler colonial Australia

Administrative detention, a form of non-judicial incarceration, was a powerful tool of settler colonialism. Administrative detention enables governments to incarcerate whole categories of people, often indefinitely and under unregulated conditions, to manage perceived threats to national identity, integrity, or security. In Australia, various forms of administrative detention have been implemented almost continuously since British settlement. By treating different forms of administrative detention as variations of the same category of governmental power, this article depicts this form of incarceration as fundamental to the creation and character of settler colonial societies. The article develops a history of Australian administrative detention by identifying the striking similarities between three historical forms – Aboriginal reserves, quarantine stations, and enemy alien internment camps – and immigration detention in the present day. Administrative detention has been used to establish order and hierarchy in the settler colonial state by classifying populations into subgroups, and has contributed to the character of its culture: in particular, the precarious sense of belonging afforded to some categories of non-citizen, and the primacy of executive power in controlling these categories. The article offers an endogenous explanation for the entrenchment of immigration detention policy, despite its flaws and harms.

Punishing status and the punishment status quo: Solitary confinement in U.S. Immigration prisons, 2013–2017

This study provides the first systematic, nationally representative analysis of administrative records of solitary confinement placements in any carceral setting. We examine patterns in who experiences solitary confinement in Immigration and Customs Enforcement (ICE) custody, as well as the stated reason for, and length of, their confinement. We reveal several findings. First, cases involving individuals with mental illnesses are overrepresented, more likely to occur without infraction, and to last longer, compared to cases involving individuals without mental illnesses. Second, solitary confinement cases involving immigrants from Africa and the Caribbean are vastly overrepresented in comparison to the share of these groups in the overall detained population, and African immigrants are more likely to be confined for disciplinary reasons, compared to the average. Finally, placement patterns vary significantly by facility and institution type, with private facilities more likely to solitarily confine people without infraction, compared to public facilities. This study offers a lens through which to more precisely theorize the legal boundary-blurring of crimmigration and the relationship between prison and immigration detention policies, to better understand the practice of solitary confinement across carceral contexts, and to analyze the relationship between national-level policy and on-the-ground implementation.

‘Closure’ at Manus Island and carceral expansion in the open air prison

ABSTRACT Manus prison was officially closed in 2017 following Papua New Guinea’s (PNG) Supreme Court decision that the existence of the camp breached the PNG Constitution. The ‘Namah’ decision was significant in signalling and seeking to curb the imperial reach of Australian law but insufficient in resolving the question of refugee imprisonment. Far from ending the imprisonment of refugees, the closure following the judicial ruling has facilitated the expansion of the imperial carcerality that has characterized Australia’s immigration detention policy since 1992. By revealing how refugee incarceration has been extended and offshore processing instantiated following the closure of Woomera camp in 2003, we argue that official closures of refugee camps Woomera and Manus have been constitutive of carceral expansion that is imperial in form and that reiterates patterns of colonial violence. After tracking imperial expansion, we make a call for prison abolition in the refugee incarceration arena as this is a critical decolonizing strategy.

Contentious politics, human rights and Australian immigration detention

ABSTRACTAustralian immigration detention has been a contentious political issue for over two decades. Although Australia is a signatory to each of the major human rights instruments, the avenues to political reform in Australia in the area of immigration detention, including for the realisation of detainees’ human rights, are limited. This is variously due to immigration detention’s status in Australia as “administrative detention”, the bipartisan support that immigration detention receives in Australia, and the hostility that the Australian Government appears to harbour towards human rights generally. While these conditions have made pursuing change by traditional legal and institutional means challenging, it has not rendered defending human rights impossible. Human rights can be, and have been, defended in other powerful ways. This article shows how human rights shape, and are shaped by, contentious political action. It discusses the relatively impactful grassroots actions that have emerged in response to Australia’s immigration detention policies and argues that considering human rights as “contentious” can help to explain why human rights are an effective means by which to challenge such policies. Finally, it discusses the importance of ongoing research and action in this area.

Immigration detention: An Anglo model

Over the last twenty-five years, immigration detention policies and practices have proliferated around the globe. We look at four liberal democratic countries with the largest immigration detention systems—Australia, Canada, the United Kingdom, and the United States—and identify components of an immigration detention policy ‘package’ as well as historical parallels in the early adoption of detention in these countries. This ‘Anglo model’ of detention is based on three main features: (1) the existence of indefinite and/or mandatory immigration detention policies; (2) the use of private security actors and infrastructure; and (3) the use of creative legal geographies in order to interdict and detain people offshore. Past scholarship on detention has focused on single national case studies or assumed the leadership of the US as the primary innovator in the field. Our paper establishes the empirical and theoretical grounds for considering these countries as a group and suggests a more complex process of policy adoption among them. Identifying an Anglo model of detention lays the critical groundwork for understanding the expansion of immigration detention and the transnational diffusion of detention policies among these countries, as well as where and how countervailing pressures to detention might form.

Immigration Detention, Inc.

This article addresses the influence of economic inequality on immigration detention. The US Department of Homeland Security (DHS) detains roughly 350,000 migrants each year and maintains more than 30,000 beds each day. This massive detention system raises issues of economic power and powerlessness. This article connects, for the first time, the influence of economic inequality on system-wide immigration detention policy as well as on individual detention decisions. The article begins with a description of the systemic impact that for-profit prisons have had on the federal immigration detention system, by promoting wide-scale detention. The resulting expansion of detention has led to ever-increasing profitability for the private for-profit prison sector, which allows the companies to exercise even more influence over policymakers to achieve yet higher levels of detention. The influence of wealthy private prison corporations also affects the very nature of immigration detention, leading to the use of jail-like facilities that are the product offered by the private prison industry. The article then describes the mechanisms by which economic inequality dictates the likelihood and length of detention in individual cases. The detention or release decisions made by DHS in individual cases must account for the need to keep numerous detention beds full to satisfy the contracts made with powerful private prison companies. DHS regularly sets bond amounts at levels that are not correlated to flight risk or danger, but rather to the length of time that the individual must be held in detention to keep the available space full. The article presents data, obtained from immigration authorities, regarding detention and bond patterns at a specific detention center that demonstrate this point. The research finds an inverse relationship between the number of newly arriving immigrants in the detention center and the bond amounts set by US Immigration and Customs Enforcement (ICE). During times when new arrivals were few, the amount required to be released from detention on bond was high; during times when there were many new arrivals, bond amounts were reduced or set at zero. The article also presents another way in which economic inequality affects the likelihood of detention at the individual level. Release and detention are largely controlled through the use of monetary bond requirements, which must be paid in full. The regular use of financial bonds as the exclusive mechanism for release means that those migrants who are most able to pay are most likely to be released, without regard to their likelihood of absconding or endangering the community. Wealth thus determines detention rather than an individualized determination of the necessity of depriving an individual of liberty. The article urges that the role of economic inequality in immigration detention raises troubling issues of democratic governance and the commodification of traditional governmental functions. The current system also leads to an unjustifiable redistribution of wealth from the poor to the rich. Looking at immigration detention through the lens of economic inequality offers new lines of theoretical inquiry into immigration detention. It connects the discussion of immigration detention to scholarly critiques of for-profit prisons and the privatization of state security functions more generally. It also brings a new perspective to prior work in the immigration and criminal justice contexts, questioning the fairness and utility of requiring payment of monetary bonds to obtain liberty from detention. The article concludes with recommendations for reform. These reforms would help to sideline the influence of economic inequality in immigration detention decision making.

Correction: Immigration Detention, Inc.

This article addresses the influence of economic inequality on immigration detention. The US Department of Homeland Security (DHS) detains roughly 350,000 migrants each year and maintains more than 30,000 beds each day. This massive detention system raises issues of economic power and powerlessness. This article connects, for the first time, the influence of economic inequality on system-wide immigration detention policy as well as on individual detention decisions. The article begins with a description of the systemic impact that for-profit prisons have had on the federal immigration detention system, by promoting wide-scale detention. The resulting expansion of detention has led to ever-increasing profitability for the private for-profit prison sector, which allows the companies to exercise even more influence over policymakers to achieve yet higher levels of detention. The influence of wealthy private prison corporations also affects the very nature of immigration detention, leading to the use of jail-like facilities that are the product offered by the private prison industry. The article then describes the mechanisms by which economic inequality dictates the likelihood and length of detention in individual cases. The detention or release decisions made by DHS in individual cases must account for the need to keep numerous detention beds full to satisfy the contracts made with powerful private prison companies. DHS regularly sets bond amounts at levels that are not correlated to flight risk or danger, but rather to the length of time that the individual must be held in detention to keep the available space full. The article presents data, obtained from immigration authorities, regarding detention and bond patterns at a specific detention center that demonstrate this point. The research finds an inverse relationship between the number of newly arriving immigrants in the detention center and the bond amounts set by US Immigration and Customs Enforcement (ICE). During times when new arrivals were few, the amount required to be released from detention on bond was high; during times when there were many new arrivals, bond amounts were reduced or set at zero. The article also presents another way in which economic inequality affects the likelihood of detention at the individual level. Release and detention are largely controlled through the use of monetary bond requirements, which must be paid in full. The regular use of financial bonds as the exclusive mechanism for release means that those migrants who are most able to pay are most likely to be released, without regard to their likelihood of absconding or endangering the community. Wealth thus determines detention rather than an individualized determination of the necessity of depriving an individual of liberty. The article urges that the role of economic inequality in immigration detention raises troubling issues of democratic governance and the commodification of traditional governmental functions. The current system also leads to an unjustifiable redistribution of wealth from the poor to the rich. Looking at immigration detention through the lens of economic inequality offers new lines of theoretical inquiry into immigration detention. It connects the discussion of immigration detention to scholarly critiques of for-profit prisons and the privatization of state security functions more generally. It also brings a new perspective to prior work in the immigration and criminal justice contexts, questioning the fairness and utility of requiring payment of monetary bonds to obtain liberty from detention. The article concludes with recommendations for reform. These reforms would help to sideline the influence of economic inequality in immigration detention decision making.

Mental health of children and adolescents in Australian alternate places of immigration detention.

Mental health of children and adolescents in Australian alternate places of immigration detention.

The need for a rights-based public health approach to Australian asylum seeker health.

Public health professionals have a responsibility to protect and promote the right to health amongst populations, especially vulnerable and disenfranchised groups, such as people seeking asylum and whose health care is frequently compromised. As at 31 March 2016, there was a total of 3707 people (including 384 children) in immigration detention facilities or community detention in Australia, with 431 of them detained for more than 2 years. The Public Health Association of Australia and the Australian Medical Association assert that people seeking asylum in Australia have a right to health in the same way as Australian citizens, and they denounce detention of such people in government facilities for prolonged and indeterminate periods of time. The position of these two professional organisations is consistent with the compelling body of evidence demonstrating the negative impact detention has on health. Yet in recent years, both the Labour and Liberal parties—when at the helm of Australia’s Federal Government—have implemented a suite of regressive policies toward individuals seeking asylum. This has involved enforced legal restrictions on dissenting voices of those working with these populations, including health professionals. This paper outlines Australia’s contemporary offshore immigration detention policy and practices. It summarises evidence on asylum seeker health in detention centres and describes the government’s practice of purposeful silencing of health professionals. The authors examine how Australia’s treatment of asylum seekers violates their health rights. Based on these analyses, the authors call for concrete action to translate the overwhelming body of evidence on the deleterious impacts of immigration detention into ethical policy and pragmatic interventions. To this end, they provide four recommendations for action.

Torture, healthcare and Australian immigration detention

Australia has arguably led the developed world in implementing the most damaging and regressive measures aimed at deterring asylum seekers and refugees. The harms of this system have long been...

Alternatives to Detention at a Crossroads: Humanisation or Criminalisation?

This article aims to critically examine the development of alternatives to immigration detention policies. In the European Union, the emergence of alternatives to detention in the immigration framework is a relatively new phenomenon, strongly inspired by the criminal framework and enshrined in a movement of increased regulation of the immigration detention regime. Through promoting this notion, civil society has sought to engage in a constructive dialogue with States on the use of detention and the possibility to use less coercive and more human rights compliant approaches when dealing with migrants. In Europe, while these campaigns have yielded some positive results, one can question whether, when implemented, they have led to a humanisation of migration policies or, on the contrary, to an increase in the criminalisation of migrants. In view of the above, this article introduces briefly the different understandings of what are alternatives in the framework of immigration detention. Secondly, it analyses their current state of implementation in the EU European Union, both from the legal and political perspective. From this analysis, some opportunities and risks associated with such developments are presented. Finally, possible ways forward are proposed to support civil society’s positioning on this issue.

Mental distress and human rights of asylum seekers

Purpose – This paper studies the experiences of asylum seekers in Australia. The purpose of this paper is to explore the relationship between mental wellbeing, living conditions, and Australia’s detention policies in light of human rights. Design/methodology/approach – Using grounded theory, data were collected via observations, semi-structured interviews, key-informant interviews, and document analysis. Participants included seven asylum seekers and three professionals working with them. Findings – In light of a human rights framework, this paper reports on the mental distress suffered by asylum seekers in detention, the environments of constraint in which they live, and aspects of detention centre policy that contribute to these environments. The findings highlight a discrepancy between asylum seekers’ experiences under immigration detention policy and Australia’s human rights obligations. Research limitations/implications – This research indicates human rights violations for asylum seekers in detention in Australia. This research project involved a small number of participants and recommends systemic review of the policy and practices that affect asylum seekers’ mental health including larger numbers of participants. Consideration is made of alternatives to detention as well as improving detention centre conditions. The World Health Organization’s Quality Rights Tool Kit might provide the basis for a framework to review Australia’s immigration detention system with particular focus on the poor mental wellbeing of asylum seekers in detention. Originality/value – This study links international human rights law and Australian immigration detention policies and practices with daily life experiences of suffering mental distress within environments of constraint and isolation. It identifies asylum seekers as a vulnerable population with respect to human rights and mental wellbeing. Of particular value is the inclusion of asylum seekers themselves in interviews.

Exporting Detention: Australia-funded Immigration Detention in Indonesia

Since 2000, Australia has provided significant levels of funding and resources to encourage Indonesia to use immigration detention to deter asylum seekers from making the onward journey to Australia. In this way Australia has effectively extended its domestic policy of immigration detention beyond its own national borders. The provision of Australian funding for detention in Indonesia has resulted in an increased propensity of Indonesian officials to detain. This article examines the outcomes and implications of this transfer of immigration detention policy for asylum seekers and refugees in Indonesia. It draws on interviews conducted with individuals who have spent time in Indonesia’s immigration detention centres, and Indonesian immigration officials, to assess the conditions of the detention centres. The particular arrangement between Australia and Indonesia, however, fails adequately to protect the human rights of immigration detainees. Ultimately, the detention of asylum seekers in Indonesia serves as one more barrier to finding effective protection in the Asia-Pacific region.

Who must be Detained? Proportionality as a Tool for Critiquing Immigration Detention Policy

Migration-related detention – or the detention of non-citizens because of their status – is intimately associated with incarceration, raising questions about whether this form of detention is proportionate to the administrative aims of immigration policy. Many countries use prisons to hold irregular migrants during deportation proceedings; dedicated migrant detention facilities are frequently housed in abandoned jails; in some countries, purpose-built facilities are modelled on penitentiaries; and rights groups point to the “prison-like” qualities of detention centres to decry the perceived creeping criminalisation of immigration. This paper endeavours to use the legal principle of proportionality as a tool to critique immigration detention practices and policies. To this end, the article proposes a methodology for assessing operations at detention centres that opens the phenomenon up to empirical study and allows for comparative research of detention practices across a multiplicity of cases. It then highlights a discrete set of dimensions that can be used to measure the degree to which States’ employment of detention is proportional to the limited ends established in law for this type of deprivation of liberty.