Immigration detention is often in the news. There have been reports of the death of people being deported, the physical and verbal abuse of detainees and the neglect of children with serious medical conditions in detention. The courts have also addressed cases involving immigration detention lasting several years, the detention of mentally ill immigrants and the existence of secret Government policies in relation to foreign criminals.
The media and the courts have seemed to view immigration detention through the lens of 20th Century State repression. Behind their criticism lies the image of the State that kills, tortures and arbitrarily detains.
Clearly, it is important to prevent such instances of excessive State power. However, this lens can distort our view of immigration detention. It results in a focus on extreme cases, often involving violence of some form towards migrants.
The conditions in the UK’s immigration detention centres are far removed from those found in 20th century totalitarian regimes. The facilities of one prominent centre, Harmondsworth, include a library, a gymnasium and courses including arts and crafts. Hardly comparable to detention in a dictatorship.
Detention centres in the UK are frequently managed not by the State but instead by private companies. One detention centre, Yarl’s Wood, is on a business park, reinforcing its status as a corporate and not a State enterprise. Again, this is far removed from our familiar idea of repression, in which the State typically takes centre-stage.
This is not to defend immigration detention. On the contrary, clearly some of this is gloss. However many arts and crafts classes there are, detention remains a fundamental breach of human rights and it demeans all those involved in it.
Nevertheless, the glossy appearance can create the suspicion that behind the façade of immigration detention lies the disturbing but familiar reality of severe State violence towards individuals.
In fact, the disturbing reality of immigration detention is of an unfamiliar kind. The old focus of criticism is no longer sufficient on its own and the focus should be shifted from the severity of detention to its normality.
Immigration detention is important as part of the weakening of the boundary between detention and liberty for migrants in the UK. At one end of the spectrum, this involves a reduction in the severity of immigration detention for the majority of detainees. At the other end, however, it involves an increase in the levels of control for migrants formally at liberty.
With this merging of detention and liberty, immigration detention becomes highly insidious, permeating the lives of migrants through ever greater levels of control and surveillance. This leads to a generalised state of ‘interference’ in the lives of migrants, encountered on the flight over, at work, in bed – everywhere – that culminates in the detention centre.
This interference accompanies migrants apparently at every step. It starts before many migrants even enter the UK, as the Government requires a photograph and fingerprints from all visa applicants during the application process. It continues in the journey to the UK. The Government has issued a Code of Practice to transporters of migrants on the procedures needed to prevent the carriage of “clandestine migrants”.
The Government can grant Approved Gate Check status to transporters that meet strict criteria for checking passenger's documents before departure. By following these codes and procedures, transporters can avoid fines for carrying migrants entering the UK unlawfully.
On or before arrival, transporters must also provide information about passengers to the UK authorities including potentially their address and telephone number.
Upon arrival in the UK this close monitoring of migrants continues. Hotels must keep registers of their guests for immigration purposes and they must keep these registers available for inspection for 12 months. Nationals of many countries including Brazil, Russia and China are also required to register with the Police if they are given permission to remain in the UK for more than 6 months.
The primary actors in the ongoing monitoring of migrants in the UK are their private Sponsors. This is a key feature of the Points Based System governing the immigration of workers and students, which requires institutions wishing to sponsor migrants to hold a licence from the Government.
In the case of student migration, in exchange for reduced intervention from the Government in assessing whether applicants are genuine students, educational institutions are required to conduct such assessments themselves before deciding whether to sponsor a student. They have to take this task seriously as the proportion of students that they sponsor that are refused visas by the Government must be less than 20 per cent or they can ultimately lose their sponsor licence.
Once the migrant student is in the UK, Sponsors have a continuing responsibility for monitoring them. They are required to keep records of their students and to report to the Government if a student fails to enrol on or attend their course. They must allow Government staff access to their premises on demand and comply with guidance that they give about how best to fulfil their sponsorship duties.
Where a Sponsor fails to comply with its duties, the Government has a range of sanctions, including revoking its licence, as has happened with London Metropolitan University. If they do this, all students being sponsored, including those with entirely valid immigration status, must either change to a different Sponsor – and pay any fees required by that Sponsor – or leave the country within 60 days.
The Government has also recently announced the creation of a National Allegations Database to help it gather information on migrants from ordinary members of the public.
As such, throughout their journey to and their time in the UK, migrants are subject to an elaborate system of monitoring from a range of sources including the Police, airlines – and even their university lecturers. This is of a low level nature that does not amount to a formal violation of their liberty, but nevertheless constitutes an ongoing interference in their lives.
Viewed in this wider context, formal detention appears the culmination of a process that begins when the migrant first applies to come to the UK. It is as if from this point a prison door opens for the migrant, which finally slams shut upon arrival in detention.
Immigration detention and immigration interference
This immigration interference is important as the vast majority of migrants are never detained and still fewer are subjected to abuse of the sort cited at the start of this article. The latest Government figures show that at the end of June 2012 there were 2,993 people in immigration detention. Medical Justice is a fantastic organisation. But given these figures, surely they are wrong to talk of the “industrial” scale of detention in the UK.
Without the wider context of immigration interference, discussion of immigration detention can be marginalised because of the exceptional character of detention. This interference can show the wider relevance of detention to migrants in the UK, to show that the system of control in the detention centre stretches far beyond its walls and touches those migrants that never come close to a detention centre.
An awareness of this immigration interference can also provide a more nuanced critique of immigration detention. In particular, practitioners with clients in detention often see their role as simply getting their clients out. Of course this is an important task, but this should not prevent practitioners or others from questioning the nature of the liberty enjoyed by migrants once they are released from the detention centre or indeed the liberty of those that are never even detained.
In some ways, interference is not limited to migrants. The philosopher Giorgio Agamben has criticised the increasing use by Governments of biometric information. He discusses the development of finger-printing in the 19th century to be used solely for criminals and he criticises the application of these methods to society as a whole as a step towards the criminalisation of all members of the “political body”. He also criticises the decision to require all immigrants coming to the USA to give their finger-prints. He comments that “practices first reserved for foreigners find themselves applied later to the rest of the citizenry” and that this decision therefore affects the “juridical-political status ... of citizens”.
In the UK, the taking of biometric information by the Government is not limited to migrants: all UK passports now hold biometric information. Like migrants, British citizens are now also subject to intense monitoring and control, through for example the ever-increasing proliferation of CCTV. We may therefore justifiably point to a widespread interference in the lives of all those living in the UK and not only migrants.
However, while the forms of monitoring above may not be limited to migrants, their most severe consequences are focused on migrants. Where a British student fails to turn up to lectures, they may be told off. Where a foreign student does so, they may be removed from the country.
In addition, the role of private actors is particular to migrants. The current UK immigration system requires private parties such as carriers, employers and educational institutions to introduce their own system of control and surveillance of migrants, often following guidelines provided by the Government. This creates an added level of governance, in which the State delegates responsibility for the administration of migrants to private parties. This has several consequences for migrants.
First, very simply, private parties will often make mistakes. They may have far fewer resources than Government to administer the system of immigration control and far less expertise. This may lead them to wrongly conclude that a migrant is not eligible to work or study in the UK. There has been at least one reported case of this in the employment context, where an employer wrongly concluded that the Nigerian wife of a Spanish national no longer had the right to work in the UK and therefore suspended her employment without pay. One must assume that there are many other cases in which Sponsors make mistakes to the detriment of migrants without those migrants ever knowing that any legal redress is possible.
Secondly, private parties may often be overly cautious in their assessment of migrants. Given the consequences to educational institutions with a large number of non-EU students of losing their Sponsor licence, many are surely likely to err on the side of caution by refusing to sponsor students or reporting a student to the Government where they are unsure of what to do. Given the amount of money that these institutions stand to lose, it would not be surprising if some were struck by a sense of fear.
The interference in the lives of migrants must also leave those migrants feeling very insecure. Their monitoring creates a climate in which many will feel that they are constantly under suspicion and that the slightest mistake may lead to drastic consequences for them such as the revocation of their immigration status.
Thirdly, therefore, private parties may also exploit the insecurity of migrants. The Government advises people with partners that they have sponsored to come to the UK to inform it if the relationship breaks down. While these partners may obtain permanent residency where their relationship ends due to domestic violence, there are many ways in which they may be exploited short of domestic violence for which little or no protection would be available.
And of course this all comes at the same time as the Government is introducing major cuts to legal aid. This has already led to the closure of the main Government charity providing legal advice to migrants. From April 2013, there will be no legal aid for almost all immigration cases. This will inevitably lead to many migrants receiving poor advice or no advice at all.
Unlike British citizens therefore, who understand the system in the UK and who can anticipate surveillance from relatively familiar sources such as the Police, migrants are seemingly surrounded by threats, not only from the Police but also from their employer, their lecturer – even their lover. It would be surprising if they too were not struck by fear.
Fear therefore seems the overwhelming result of the UK immigration system, whether for migrants themselves or for those involved with them. One may ask how this fear can be turned to hope. By adjusting our critical lens to encompass this wider immigration interference, we can perhaps begin to answer that question.
This article is drawn from a paper given at the Critical legal conference, Stockholm, 14-16 September, 2012.