Beyond Trafficking and Slavery

Interview: detention as the new migration management?

Immigration detention is becoming a preferred method for states to process and deter migrants, but there are many other options available out there. Español

Ben Lewis Cameron Thibos
24 February 2017

BBC World Service/Flickr. (CC BY-NC 2.0)

Ben Lewis: I'm Ben Lewis, and I'm working with the International Detention Coalition. We're a global network of NGOs working in around 70 countries around the world.

Cameron Thibos (oD): Could we talk a little bit about the securitisation of migration that is happening on our borders today?

Ben: Securitisation is one of these emerging trends in migration that's quite concerning. It's been happening really for the past couple of decades. We saw a large increase in securitisation of borders after 9/11, where states started viewing migration through a lens of security rather than protection or regular migration governance. So, things like border walls and fences, the use of detention as a deterrence measure, or as part of a migration management programme: these are the types of issues that are now emerging as borders become harder and more securitised.

Cameron: You focus on detention. How is detention being used as a method of immigration control?

Ben: Under international law I think it's important to note that detention is only ever meant to be an exceptional measure. So it can be an exceptional measure in the criminal context, for example, when people are a harm to others. It can be an exceptional measure in an institutional manner, when you're a harm to yourself, for example.

But in the administrative and enforcement context it's meant to be even more exceptionally rare. But what we're seeing is that instead of being an exceptional measure of last resort, detention is now a preferred method of first resort for governments when engaging with undocumented people coming across their border.

Long-standing histories of migration governance have relied on people coming and going, and really figuring our their migration status after the fact. This is how your grandparents and my grandparents or great grandparents immigrated to wherever we ended up. But now there's more onus on the individual to have permission to travel before they leave.

Instead of being an exceptional measure of last resort, detention is now a preferred method of first resort for governments when engaging with undocumented people coming across their border.

As a result of that, states are detaining people at borders when they enter the country without prior approval. They're also increasingly using detention in the returns context to deport people back to their country of origin, or sometimes to another country that they're not even affiliated with out of convenience.

Cameron: What are the conditions of these detention facilities? How do they differ from jails, or shelters?

Ben: The conditions of detention really vary widely from country to country, even from regime to regime. Some immigration detention is in criminal facilities because irregular entry and stay are criminalised, so you might be charged under criminal law and housed in a criminal facility together with other criminal offenders. This is illegal under international law but increasingly happening at the state level.

In other times, it really just depends on which state. We've seen immigration detention facilities which are police stations that are located near borders, makeshift camps that are closed in Greece and Italy. There's a new hotspot approach that the European Union has been rolling out, which has been highly criticised as a non-protective regime.

Read more about the hotspots operating on Lesvos today.

We've seen shipping containers that are being used in Malta. In the past, Australia has an offshore detention policy that has been called everything from a refugee camp to a concentration camp. But across the board one thing is clear: a person is not free to leave. So there is a deprivation of liberty at play, and under international law that triggers all sorts of international legal protections, both due process and substantive.

In terms of the rates of harm, a number of studies have shown high rates of suicide and self-harm. They’ve also shown a lack of access to economic, social and cultural rights – so things like healthcare and educational access, families being separated or torn apart, a lot of physical and social violence being meted out on immigrants in places of detention – so they're not protective places and certainly not appropriate for people in vulnerable situations.

Cameron: I think lots of people see detention as a reasonable first step, especially when people feel that there is a crisis happening – buy time by holding them simply until someone can figure out what to do with all these people. What would be a better system that could meet the needs of the state while protecting human rights?

Ben: I think first of all we have to challenge this crisis narrative, which has been such a predominant focus of the media discourse and the political discourse for the past couple of years. Statistically, numerically, migration has remained as a percentage of the overall population around 3%. It hasn't increased, it's just that we are more people in the world today and there are therefore more of us on the move.

It's only relatively recently that we've turned to this really securitised approach of 'fix your status ahead of time or don't come at all'.

Certainly people fleeing Syria are in individual or personal crisis, oftentimes, and certainly people left behind in places of conflict or civil war are in crisis. But the states that are responding to migration are by and large not in crisis. These new immigration arrivals are largely manageable, and I think the solution is the way that migration has been managed for most of time immemorial. That is, legal pathways for people to enter a country, or to enter a country without prior permission, and to regulate their status after the fact.

This is something that has been done for centuries. It's only relatively recently, and I think it's important to note this, that we've turned to this really securitised approach of 'fix your status ahead of time or don't come at all'. I think that has real impact on things like right to asylum, the protection of children, victims of trafficking – it's really causing a fundamental breakdown in the way that the international protection regime is supposed to work.

Cameron: Speaking of this issue of regularising a status before travel, I'd like to discuss the rise of border externalisation with you – the idea that border control and protection regimes should both be moved overseas. What are the benefits or risks associated with that model?

Ben: Border externalisation has been one of the predominant themes here at the 'civil society days' of the Global Forum on Migration and Development (held in December 2016, where this interview took place). One of the key messages that has come out is that if states are going to externalise their borders, they also need to externalise protection. Unfortunately that's not happening.

What do we mean by 'border externalisation'? This is a relatively new concept that people are still trying to define. It includes things like, rather than processing or enforcing one's borders on one's own territorial jurisdiction, using bilateral trade agreements or bilateral political agreements with other states to essentially push the border further and further away.

That might mean, for example, the United States providing capacity building support to border authorities in Mexico so that they are encouraged to arrest and detain more individuals that are headed to the United States. It might be in direct cash interventions, as in the EU-Turkey deal, that encourages things like the building of detention centres or the burning of boats, so that people cannot actually arrive to Europe's shores.

Lots of times this is problematically couched in terms of a protective function for the migrants themselves: 'we're just trying to help or to protect people from getting on rickety boats and the deaths at sea'. That kind of argumentation rings fairly hollow. If protecting lives and saving lives was really the concern of European states or the United States, for example, it would be much easier to simply pay for a plane ticket at much less the cost than we are currently paying on border securitisation.

In fact, with what immigrants themselves are paying on smuggling operations because of more hardened borders and externalised borders, they could buy a first-class plane ticket and arrive in luxury to places like Germany and Sweden and Italy and Greece and elsewhere to seek asylum individually there. So, we really have to deconstruct the language that's being used by states, and also be a bit more critical of the reasons being given by states for this hardening of borders and this externalising of borders.

Cameron: Do we have a reason to trust that states would carry out externalised border processing in good faith, i.e. in the interests of the migrants themselves? Or should we be sceptical about that?

Ben: I think we have to distinguish between external visa processing and external asylum processing. Educational visas, tourist visas, are also increasingly being externalised, meaning that you must have one before you arrive to the host country. It bears mentioning that as an American citizen, I am able to get a visa upon arrival in many contexts. So it begs the question of why can't more people have access to visas on arrival? But certainly that's a more traditionally or historically understood or accepted way of visa processing.

If we had to apply before we fled for our lives, that really defeats the purpose of refugee protection.

The new trend that is concerning, however, is asylum processing in the host country. In other words, people are increasingly being told to stay where they are – which is oftentimes a place of danger, or conflict, or lack of protection – and apply for asylum there rather than getting to safety first and applying for asylum later. It really flips the Refugee Convention on its head. If we had to apply before we fled for our lives, that really defeats the purpose of refugee protection. It's a really concerning trend, and there's still a lot to be understood about how effectively it's working.

Bill Frelick of Human Rights Watch has written a really brilliant report looking at external asylum processing in Central America, and I think a quite scathing critique of that system: of the recognition rates, of the willingness of those officers to favourably find asylum/refugee status, and then people being forced to leave anyways while putting them in a status where they might have already been identified by the host country of being undeserving of international refugee protection. So I think it does raise some tricky issues.

Cameron: Anything else you would like to add?

Ben: Oh, there's plenty more to say, but perhaps two things that are specific to our work at the International Detention Coalition. One is that we've had an increased focus, really in the last couple of years, on an absolute prohibition on the detention of migrant children and families, which has been another increasing trend that we're seeing and that is quite concerning. Again, this is oftentimes couched in terms of the crisis narrative, where detention is being used in a very coercive and harmful way, even for the most vulnerable. I think there is a very clear message from civil society as well as a broad cohort of UN experts that this is an unacceptable practice across the board and must be ended.

The other is, you had asked earlier about the normalisation of detention practices. I think one of the ready-made antidotes to this is alternatives to detention. There has been a lot of research and best practices developed around this, and our organisation has done quite a bit of work on naming those best practices and naming the key elements of successful alternatives to detention.

We found that there are over 250 examples across the 70 countries in which we have members working on the ground, and they cover everything from early intervention and screening programmes through to community-based housing models, and release options for those who might have been wrongly detained in the first place. There are plenty of options available, and you don't have to use the very harsh and coercive measure of detention to meet the legitimate migration goals of the state. In fact, alternatives tend to facilitate better cooperation with the on-going regular migration processes that states are aiming to achieve.

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