If detention is a tool of war on irregular migration, then the damage on both sides is severe. But this war is not inevitable. There is a significant area of potential common interest in a fair system that works primarily by consent
Immigration detention is crudely effective. If the priority is to control migrants, it works - virtually no-one escapes from British detention centres these days. More importantly it works in symbolising, in reinforced concrete and razor wire, the government’s determination to enforce border security. For these reasons, its expansion in the UK has been inexorable: a record 28,909 migrants were detained in 2012, up 7% on last year.
However, detention is far less successful at the complex business of actually managing migration. It is hardly a solution to immigration control, as detention spaces will always amount to a tiny fraction of the numbers of irregular migrants. It is also expensive and wasteful: recent research has found that £75 million per year is wasted on the unnecessary long-term detention of migrants who are ultimately released.
It is well-established how harmful detention is for migrants: in the last 18 months alone, for example, the Home Office has four times been found by the High Court to have committed inhuman or degrading treatment of mentally ill migrants in detention. Recognising the damage done by detention to children, the Government introduced a new Family Returns Process in 2011 to minimise the detention of children, without acknowledging that any of the same logic applies to adults.
If detention is a tool of war on irregular migration, then the damage on both sides is severe. But is this war interminable and inevitable? Are the interests of irregular migrants always diametrically opposed to those of governments? Are there alternatives to brute enforcement?
What are ‘alternatives to detention’?
The notion of ‘alternatives to detention’ is gathering momentum around the world in a wide range of contexts. The UN Refugee Agency, UNHCR, has chosen it as one of its key campaign focuses for 2013. The International Detention Coalition has analysed and promoted innovative projects around the world that systematically reduce the use of detention, by managing and supporting migrants in the community. A growing body of ideas and experiences undermines the logic of detention and enforcement as presuppositions of immigration control. Could it open up possibilities of radically refiguring the management of immigration to meet the needs of governments and migrants themselves?
The idea of alternatives to detention is slippery, being many things to many people. In the UK, it has amounted to a couple of failed pilots, which have demonstrated conclusively that little is achieved by moving refused migrant families to different (unlocked) accommodation and telling them to go home. The Millbank and Glasgow pilots appeared to cause unnecessary distress to families whilst failing to meet the government’s objectives. For once, all sides were in agreement that they were failures.
But elsewhere, very different projects have had opposite results by testing out principles associated with ‘case management’. This approach was first developed in Sweden in the 1990s but has become the object of international attention since 2006 when the hitherto hard-line Australian government used it to move away from mandatory indefinite detention of all irregular migrants. It involves releasing migrants to community-based support, including legal advice, welfare support, housing, and time and space for them to consider all options for their future. It is the polar opposite of the British policy of detention and destitution for refused asylum-seekers. The results have been encouraging for all sides: many migrants have received visas to remain, but the majority who were refused have departed independently.
Such initiatives are proliferating. In the last few years, Belgium has ended the detention of families by housing them in ‘returns houses’, with on-site ‘coaches’ who address welfare needs and investigate and discuss all options, including returns options. Hong Kong has begun releasing vulnerable migrants, including torture survivors and asylum-seekers, to case management from a state-funded NGO. In the US, the Lutheran Immigration and Refugee Service is coordinating a nationwide project that gets migrants released into the support of local faith and community networks.
Nothing as imaginative has developed in the UK. Discussion of alternatives has largely been stymied by those dismal UKBA pilots, which seem to have turned both government and civil society off the whole concept. It is clear that models from abroad cannot simply be transposed to the UK. None are perfect; all bring considerable risks. However, given the UK’s current extensive and expanding use of detention, the question must be asked: is there any alternative to exploring alternatives?
What alternatives to detention exist in the UK?
In addition to those pilots formally styled as ‘alternatives to detention’, the UK operates a variety of processes that amount to forms of alternatives. These include release on bail or temporary admission, often to a designated address, with requirements to report regularly to a police station or immigration office. These alternatives hardly amount to solutions for migrants themselves. Research into bail hearings has repeatedly found that decisions are often arbitrary and based on no evidence. And release itself - to temporary accommodation, a supermarket card to keep starvation at bay, and the ever-present prospect of a return to detention - amounts to no kind of life for the individuals ‘lucky’ enough to get it.
More fundamentally, these alternatives stay within the control and enforcement model that culminates in detention. They merely allow for modulation of the degree of coercion between different individuals. They can help individuals, but not facilitate a systemic shift away from detention - when someone is bailed, another migrant is detained to take his or her place. They amount to lighter touch enforcement, compulsions that stop short of detention. But they still assume that some, lesser, coercion is necessary. As a result, they are generally additions to detention, allowing coercion of more people, without reducing detention.
If not detention, then what?
If we are to cure this addiction to detention, we need to undermine the core assumptions that underlie it. We need evidence that non-coercive approaches can effectively meet government objectives. This requires addressing the grounds on which detention is justified. But it also means reframing the question so that the question of compliance with immigration control is asked alongside that of the needs and perspectives of migrants themselves. We need be able to answer the question - if not detention, then what?
The government’s main justifications for detention, which alternatives must address, are to prevent absconding and/or reoffending; and to ensure returns of migrants who are finally refused leave to remain in the UK. Detention certainly prevents any possibility of absconding, but it is by no means clear that migrants abscond otherwise. There is a lack of evidence on absconding rates of migrants released from detention, although limited government statistics and independent research have suggested that the rate is very low. Bail for Immigration Detainees has recently demonstrated that both UKBA and the courts persistently justify refusals of release by invoking risks of absconding or reoffending, on the basis of flawed and inadequate risk assessments. The lack of evidential basis for this risk-averse mindset is clear. But how to change it?
Likewise, there are no statistics on reoffending rates of foreign ex-offenders. Logic suggests that they will be lower for migrants who are released at the end of their sentence and receive probation supervision, alongside community support, than for those released after long-term detention, without supervision and support because their licence has expired. But, again, the evidence is lacking.
Community support in the UK
Detention decision-making often assumes that release is into a vacuum, partially and inadequately filled by limited coercion. For migrants without close family ties, the assumption is that the community is an unknowable blank, into which the migrant will likely disappear forever.
This is simply not the case in the UK. Providing structured support for people released from detention would not require expensive new services and accommodation to be developed out of nothing. Despite funding cuts and enormous practical challenges, British civil society still manages to provide an unparalleled range of services and support for refused asylum-seekers and migrants, from food parcels to befriending to legal advice. The extent to which people released from detention access these services depends on many factors, including location and their own ability to be proactive. But no-one currently knows in advance what services the person will access and how they will be supported. With additional funding, could some of these services become alternatives to detention, by guaranteeing structured support to people seeking their release? Could such ‘support plans’ help migrants convince the authorities to release them?
There are real opportunities here to prove that, in general, people released from detention to adequate support and advice don’t abscond and don’t commit crimes. At the moment, we do not have the evidence to make this argument. Only if such approaches are tested in the UK will we be able to demonstrate what works here.
The difficult question of returns
The second justification of detention, ensuring returns, is more difficult to address through alternatives. The poor quality of asylum and migration decision-making means that many refused asylum-seekers and migrants have genuine fears of return or powerful reasons to stay in the UK. There is a real danger of pushing vulnerable migrants into returns that would put them in danger or otherwise breach their rights.
However, that is not to say that assisted return can under no circumstances be discussed with refused migrants before we have a fully reformed system of decision-making. Better to call it ‘assisted’, not ‘voluntary’, return - return is not voluntary if you have been refused leave to stay. But some people can and do plan their own return, because they decide that it is the least bad option facing them. NGOs should not be in the business of promoting return to fearful migrants. But migrants should have the opportunity to make informed, considered decisions about their futures, as autonomous individuals. Refugee Action’s Choices programme has for many years provided a non-coercive space for migrants to consider assisted return. The international evidence suggests that many more migrants choose to return when they have welfare support, legal advice and the opportunity to carefully consider all their (limited) options - for example, in 2008, 82% of asylum-seekers returning from Sweden left independently. The UK’s opposite approach, enforced destitution, generates one of the lowest rates of assisted return in Europe.
Alternatives to detention should not be all about assisted return. Increased take-up of assisted return is an important selling-point for governments, but it must not drown out the need to get the right support for migrants going through the process.
This requires the active involvement of migrants themselves. Arguably, a weakness of existing models is the lack of input of migrants in designing and evaluating the projects, and in participating actively as they go through them. Governments assume that active community involvement is to be discouraged in migrants who need to return. But is this necessarily the case? Will migrants who have a role in community-based projects that are not just about returning them, be in a better position to make decisions and participate in the resolution of their cases? The logic of successful alternatives to date is towards increased focus on developing the skills, confidence and participation of migrants, so that they are active participants in the migration process, rather than objects or statistics.
The most powerful argument against detention would be an alternatives programme that emulates Australian case management, for example. That could persuade UKBA or the courts to release, or not detain in the first place, migrants onto a programme that achieves as high a rate of return as detention, at a fraction of the financial and human cost. If such evidence could be obtained, for example through small NGO pilots, as happened in Australia, it would not automatically change government policy. But it would give real impetus to a change of approach.
Engagement not enforcement
The implications of such a shift could be truly radical. Detention proliferates today because the government relies on enforcement to achieve its immigration control objectives, with half-hearted promotion of assisted return in a marginal role. The international evidence suggests that this is as misguided for governments as it is for migrants.
An immigration system based not on enforcement but rather on engagement with migrants as human beings, as participants in the system, would constitute a paradigm shift. Such an approach would not be an aberration: across the rest of society, from prisons to policing to schools, it is accepted that institutions can only function effectively with the consent of most of the people they work with, most of the time. The management of immigration is itself an institution - and it is ultimately preposterous to think that, within a liberal democracy, it can succeed on its own terms through enforcement alone.
Such a shift would also require a shift in the culture of decision-making. Some people in detention today are simply never going to agree to return, because they face extreme danger in countries like Somalia, Democratic Republic of Congo or Sri Lanka. Or because they have lived for most of their lives in the UK and are British in accent, family, education - everything but passport. Or because they could not return even if they wanted, since travel documents to countries like Iran, Palestine and Eritrea are effectively unobtainable. Immigration control based on engagement would need to take a fairer and more pragmatic approach to these migrants, who at present rarely return anyway despite coercion, instead languishing for years in detention before eventually being released.
Such a system is hard to imagine, because we are all accustomed to an adversarial immigration process, where asylum-seekers and migrants are either passive and confused objects of complex legal challenges, or actively campaigning and fighting against the system. But it need not be the case: alternatives to detention could form part of a wider shift in culture towards an inquisitorial system that aims to get decisions right, without reference to political agendas, and which works with migrants to resolve their cases.
The key principle needs to be the active participation of migrants. Immigration control will be dysfunctional as long as it persists in treating them as objects, unexpected deliveries that can be accepted or refused. Migrants themselves must be allowed to take the lead in asserting their own agency, in self-advocating for their rights and for structures that allow them to participate in the system.
Managing migration is increasingly seen as a key function of modern statehood. Pervasive anxieties around immigration mean that this will not change soon. The scale of global inequality and desire of people to migrate means that conflict with governments’ priorities is inevitable. But there is a significant area of potential common interest, in a fair system that works primarily by consent. The nature of migration management itself is not fixed and ahistorical, but a recent and shifting phenomenon. It can be induced to change, in ways that might just start to assuage the anxieties both of governments and the public, whilst reducing the harm that detention does to migrants. The challenge is formidable; there are no simple recipes for success, and any initiatives would bring substantial risks of failure or unforeseen consequences. However, a practical vision of immigration reform that sees migrants as people is the best chance we have for that change.
Jerome Phelps will be speaking on alternatives to detention at the conference 'A Future Without Immigration Detention' which will take place at the School of Oriental and African Studies (SOAS), London from 26th - 27th April 2013.