April 2015: Academic Publications on Unlawful Detention

Recent updates on academic articles, books and reports from around the world on unlawful immigration detention. The following portfolio is compiled by Stephanie Silverman as part of the Detention Workshop, an academic discussion group on immigration detention.

ARTICLES
de Noronha, L. (2015). WP-111-15: Unpacking the figure of the ‘foreign criminal’: Race, gender and the victim-villain binary. International Migration Institute Working Papers. Oxford, University of Oxford.
The UK’s Foreign National Prisoner (FNP) crisis’ of June 2006 provides a key moment to unpack the figure of the ‘foreign criminal’ through. Through an analysis of media articles, Commons debates and NGO documents, I discuss the and gendered stereotypes that were invoked in the construction of ‘foreign criminals’, as they were positioned within the victim-villain binary that characterises migration debates. In explaining the specific kinds of migrantness and criminality made to represent the FNP ‘crisis’, I argue that race and gender matter, and that they work through one another. The FNP ‘crisis’ incensed the media and politicians who framed the issue in terms of dangerous foreign men whose hypermasculinist violence presented a severe and existential threat to the British people. These images relied upon race for their intelligibility. While NGOs and advocates sought to challenge the idea that all, or even most, ‘foreign criminals’ deserve to be deported, they still tended to frame their arguments in terms of victims and villains. In doing so, advocates failed to challenge the gendered and racialised stereotypes that distinguish good migrants from bad ones – victims from villains. In the end, advocates and academics should retain critical distance from state categories if they are to avoid reifying these deeply entrenched narratives surrounding race and gender.
Puthoopparambil, S. J., et al. (2015). “‘‘It is a thin line to walk on’’: Challenges of staff working at Swedish immigration detention centres.” International Journal of Qualitative Studies on Health and Well-Being 10: 11.
Detention of irregular migrants awaiting deportation is widely practiced in many countries and has been shown to have profound negative impact on health and well-being of detainees. Detention staff, an integral part of the detention environment, affect and are affected by detainees’ health and well-being. The objective of the study was to explore experiences of staff working at Swedish immigration detention centres. Fifteen semi-structured interviews were conducted with staff in three Swedish detention centres and were analysed using thematic analysis. The results indicate that the main challenge for the staff was to manage the emotional dilemma entailed in working as migration officers and simultaneously fellow human beings whose task was to implement deportation decisions while being expected to provide humane service to detainees. They tried to manage their dilemma by balancing the two roles, but still found it challenging. Among the staff, there was a high perception of fear of physical threat from detainees that made detention a stressful environment. Limited interaction between the staff and detainees was a reason for this. There is thus a need to support detention staff to improve their interaction with detainees in order to decrease their fear, manage their emotional dilemma, and provide better service to detainees. It is important to address staff challenges in order to ensure better health and well-being for both staff and detainees.
Sen, P., et al. (2014). “Mental health care for foreign national prisoners in England and Wales.” Journal of Mental Health 23(06): 333 – 339.
Background: The foreign national prisoner (FNP) population in England and Wales has disproportionately increased in size, but mental health research in this group has been limited.
Aims: Define the FNP group, review their understood characteristics, identify service challenges and make onward recommendations.
Methods: A literature search of Pubmed and Google Scholar was undertaken. Relevant articles/reports were identified and reviewed.
Results: Many FNPs face challenges: isolation (with limited family contacts); language barriers; difficulties accessing services; prejudice and discrimination; active legal issues regarding immigration. These are compounded by poor quality interpreting services, institutional barriers including racial assumptions propagated by forces of legislation, the disrupted local care pathways and common mental health problems (including post-traumatic stress disorder, depression and anxiety). Pre-detention trauma, self-harm and suicide are over-represented.
Conclusions: Further prevalence and unmet needs research is urgently required. A validated screening tool could assist identification and service access for FNPs with mental health problems. Services providing relatively inexpensive interventions specific to the needs of FNPs (e.g. narrative exposure therapy) should be piloted.
Slack, J., et al. (2015). “In Harm’s Way: Family Separation, Immigration Enforcement Programs and Security on the US-Mexico Border.” Journal on Migration and Human Security 3(02): 109 – 128.
The Consequence Delivery System (CDS) is a suite of border and immigration enforcement programs designed to increase the penalties associated with unauthorized migration in order to convince people not to return (Rosenblum 2013). Despite its inauguration in 2011, many aspects of the CDS are not new. CDS does however, mark a shift from the deterrent strategy that, in the 1990s that relied heavily on the dangers of the natural terrain to dissuade unauthorized border crossers, to one that actively punishes, incarcerates, and criminalizes them. This article presents findings from the Migrant Border Crossing Study, a random sample survey of 1,100 recently deported migrants in six cities in Mexico conducted between 2009 and 2012. It examines the demographics and family ties of deportees, their experiences with immigration enforcement practices and programs under the CDS, and how these programs have reshaped contemporary migration and deportation along the US-Mexico border. The article covers programs such as criminal prosecutions of illegal entries under Operation Streamline, and the Alien Transfer and Exit Program (ATEP) or lateral repatriation program which returns immigrants to different locations from where they illegally entered. In relationship to these programs, it considers issues of due process and treatment of deportees in US custody. It also examines interior enforcement under Secure Communities, which, during the study period, comprised part of the overarching border security plan, and screened virtually everybody arrested in the United States against immigration databases.
The article concludes that these programs do not have a strong deterrent effect. Instead, immigration enforcement has led to a “caging effect” over the past two decades which has disrupted seasonal migration flows, increased familial and social ties to the United States, and decreased the probability of returning to Mexico once in the United States. The development of strong family and other ties to the United States contributes to a greater resolve to return post-deportation.
Williams, L. (2015). “From immigration detention to destitution.” Criminal Justice Matters 99(01): 12 – 13.
BOOKS
Terrio, S. J. (2015). Whose Child Am I?: Unaccompanied, Undocumented Children in U.S. Immigration Custody. Los Angeles, University of California Press.
In 2014, the arrest and detention of thousands of desperate young migrants at the southwest border of the United States exposed the U.S. government’s shadowy juvenile detention system, which had escaped public scrutiny for years. This book tells the story of six Central American and Mexican children who are driven from their homes by violence and deprivation, and who embark alone, risking their lives, on the perilous journey north. They suffer coercive arrests at the U.S. border, then land in detention, only to be caught up in the battle to obtain legal status. Whose Child Am I? looks inside a vast, labyrinthine system by documenting in detail the experiences of these youths, beginning with their arrest by immigration authorities, their subsequent placement in federal detention, followed by their appearance in deportation proceedings and release from custody, and, finally, ending with their struggle to build new lives in the United States. This book shows how the U.S. government got into the business of detaining children and what we can learn from this troubled history.
Wadhia, S. S. (2015). Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases. New York, NYU Press.
When Beatles star John Lennon faced deportation from the U.S. in the 1970s, his lawyer Leon Wildes made a groundbreaking argument. He argued that Lennon should be granted “nonpriority” status pursuant to INS’s (now DHS’s) policy of prosecutorial discretion. In U.S. immigration law, the agency exercises prosecutorial discretion favorably when it refrains from enforcing the full scope of immigration law. A prosecutorial discretion grant is important to an agency seeking to focus its priorities on the “truly dangerous” in order to conserve resources and to bring compassion into immigration enforcement. The Lennon case marked the first moment that the immigration agency’s prosecutorial discretion policy became public knowledge. Today, the concept of prosecutorial discretion is more widely known in light of the Obama Administration’s Deferred Action for Childhood Arrivals or DACA program, a record number of deportations and a stalemate in Congress to move immigration reform.
Beyond Deportation is the first book to comprehensively describe the history, theory, and application of prosecutorial discretion in immigration law. It provides a rich history of the role of prosecutorial discretion in the immigration system and unveils the powerful role it plays in protecting individuals from deportation and saving the government resources. Shoba Sivaprasad Wadhia draws on her years of experience as an immigration attorney, policy leader, and law professor to advocate for a bolder standard on prosecutorial discretion, greater mechanisms for accountability when such standards are ignored, improved transparency about the cases involving prosecutorial discretion, and recognition of “deferred action” in the law as a formal benefit.
Wong, T. K. (2015). Rights, Deportation, and Detention in the Age of Immigration Control. Palo Also, Stanford University Press.
Immigration is among the most prominent, enduring, and contentious features of our globalized world. Yet, there is little systematic, cross-national research on why countries “do what they do” when it comes to their immigration policies. Rights, Deportation, and Detention in the Age of Immigration Control addresses this gap by examining what are arguably the most contested and dynamic immigration policies—immigration control—across 25 immigrant-receiving countries, including the U.S. and most of the European Union. The book addresses head on three of the most salient aspects of immigration control: the denial of rights to non-citizens, their physical removal and exclusion from the polity through deportation, and their deprivation of liberty and freedom of movement in immigration detention.
In addition to answering the question of why states do what they do, the book describes contemporary trends in what Tom K. Wong refers to as the machinery of immigration control, analyzes the determinants of these trends using a combination of quantitative analysis and fieldwork, and explores whether efforts to deter unwanted immigration are actually working.
REPORTS
Abu-Hayyeh, R. and F. Webber (2015, March). “Unwanted, Unnoticed: An audit of 160 asylum and immigration-related deaths in Europe.” European Research Programme of the Institute of Race Relations Briefing No 10. Retrieved 07 April, 2015, from http://www.irr.org.uk/news/deaths-of-europes-unwanted-and-unnoticed-migrants-exposed/.
The IRR publishes a disturbing new report, Unwanted, unnoticed: an audit of 160 asylum and immigration-related deaths in Europe, revealing the extent of Europe’s departure from its vaunted humanitarian ideals.
The deaths over the last five years, in the detention and reception centres, the streets and the squats of Europe, are a product of the rightlessness and the lack of human dignity European governments accord to migrants and asylum seekers. They are also the tip of the iceberg; the true figures are unknown, as in many countries migrants’ deaths are not recorded or investigated. But of the deaths whose circumstances are known, the largest number, sixty, were suicides; 26 were caused by untreated illness or illness exacerbated by detention, while sixteen were caused by destitution.
Athwal, H. and J. Bourne (2015, 23 March). “Dying for Justice.” Institute for Race Relations Publications. Retrieved 07 April, 2015, from http://www.irr.org.uk/news/dying-for-justice/.
On Monday 23 March, the Institute of Race Relations published Dying for Justice which gives the  background on 509 people (an average of twenty-two per year) from BAME, refugee and migrant communities who have died between 1991-2014 in suspicious circumstances in which the police, prison authorities or immigration detention officers have been implicated.

It concludes that:
-a large proportion of these deaths have involved undue force and many more a culpable lack of care;
-despite critical narrative verdicts warning of dangerous procedures and the proliferation of guidelines, lessons are not being learnt; people die in similar ways year on year;
-although inquest juries have delivered verdicts of unlawful killing in at least twelve cases, no one has been convicted for their part in these deaths over the two and a half decades of the research;
-privatisation  and sub-contracting of custodial,  health and other services  compounds concerns and makes it harder to call agencies to account;
-Family and community campaigns have been crucial in bringing about any change in institutions and procedures.
Fratzke, S. (2015, March). “Not Adding Up: The Fading Promise of Europe’s Dublin System.” Migration Policy Institute Reports. Retrieved 15 March, 2015, from http://migrationpolicy.org/research/not-adding-fading-promise-europes-dublin-system.
The chief purpose of the European Union’s Dublin Regulation—adopted as the first element of the new Common European Asylum System (CEAS) in 2003 and recast in 2013—is to act as a mechanism that swiftly assigns responsibility for processing an individual asylum application to a single Member State. It seeks to ensure quick access to protection for those in need while discouraging abuses of the system by those who would “shop” for the Member State with the most favorable asylum practices or reception conditions. As long as separate national asylum systems exist within a European area without internal border controls, Dublin—or a mechanism like it—will remain a necessary element of any European approach to asylum.
However, as implemented, the Dublin system is largely failing to achieve its two primary goals. Low effective transfer rates and a persistently high incidence of secondary movement among asylum seekers have undermined the efficiency of the Dublin system. In addition, asylum advocates have criticized Dublin for procedural delays in the evaluation of protection claims, which may disrupt family unity and put vulnerable individuals at risk. Crucially, the regulation does not recognize or address the main factor underlying the Dublin system’s problems: despite the harmonization efforts of the CEAS, essential differences remain in the asylum procedures, reception conditions, and integration capacity of EU Member States. These differences invalidate Dublin’s core assumption that asylum applicants will receive equal consideration and treatment regardless of where they submit their claims.
This report examines the key criticisms of the Dublin system as it stands now, with special attention to those that address the efficient operation of the European asylum system and the ability of applicants to quickly access asylum procedures and protection. The report then evaluates the potential of the recently adopted recast of the Regulation (Dublin III), and concludes by recommending several topics for consideration during the European Commission’s scheduled 2016 review of the Dublin system.
Pollet, K. and H. Soupios-David (2015). What’s in a name? The reality of First “Reception” at Evros: AID Fact-Finding Visit in Greece. Brussels, European Council on Refugees and Exiles (ECRE) / Asylum Information Database (AIDA) / European Programme on Integration and Migration (EPIM). 28.
ECRE’s visit to Fylakio’s First Reception Centre shows asylum seekers stuck in ‘detention carrousel’
Despite its potential, the Greek system of referral of third country nationals to the appropriate procedures (known as ‘first reception’), coupled with a dramatic lack of reception places, results in practice in asylum seekers and migrants, including children, being held in detention, often for prolonged periods. This is the conclusion of a report published this week following an ECRE delegation visit to the Fylakio First ‘Reception’ Centre and the adjacent Fylakio Detention Centre in the Evros region.

 

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