Abstract
Migrants’ everyday experiences of violent management of migration have been progressively explored in critical migration research (e.g. De Genova, 2002; Khosravi, 2010; Lind, 2017; Lundberg and Söderman, 2015; Sager, 2016). A field that remains under-researched is the crossroads of different legal areas and practices. This makes Policing Undocumented Migrants: Law, Violence and Responsibility a welcome contribution, both theoretically and empirically. This book is of general interest for research trying to understand what migration law tells police and immigration officers to do in the name of ‘justice’, and its unintended and often unseen consequences. Furthermore, the research demonstrates the intersection between social change and migration management in terms of how certain migration legal practices become authoritative and how accountability matters in this setting. In time, the study reaches over the last two decades of the Australian development and explores how legal conventions, doctrines, procedures and institutions produce ‘illegality’, a term borrowed from Dauvergne (2008).
Four case studies examine the complex practices of illegalization, which have become routine in the everyday activities of diverse institutions and legislative frameworks as well as in their intersection. Although the context is Australian, there are many lessons to be learned from a Northern European standpoint.
Starting off with an incident where a state initiative was cancelled due to public protests, ‘Operation Fortitude’ (a multi-agency collaboration between the Australian Border Force and the police which was designed to detect people without valid visas), the importance of opposition in times of violent global migration management is accentuated. Whereas this introduction indicates that the book will be about resistance, what it adequately does is to provide a deeper understanding of how different legal areas intersect and produce differential inclusion through spatial, social and temporal ordering. Thus, scholars are invited to partake in ‘productive resistance’ through contemporary critical migration research.
The first case, ‘“You’re Just Kidnapped”: Immigration “Arrests” and Detention’ (Chapter 2), deals with and compares coercive migration policing regulations. The chapter’s quandary is the discrepancy between, and intersections of, judicial frameworks governing arrest and immigration detention. One of the most intrusive powers in these contexts is the power to detain people. Whereas arrest is regulated in detailed rules, immigration detention is regulated through vague policy on the generalized power of individual officers to require identification whenever they find they have ‘reasonable suspicion’. This discretionary border violence derives from an administrative reform adopted in 1994, when two statuses of non-citizens were introduced in Australia: lawful non-citizens and unlawful non-citizens. In recent years, detention as a result of street controls and raids has kept escalating (from 2708 in 2009–2010 to 4437 in 2014–2015), sometimes with fatal outcomes. These low-visibility arrests, where people are suddenly completely isolated from their everyday life contexts, lead to the production and reproduction of zones of non-responsibility (Veitch, 2007) as well as to a trivialization of the intrusive character of detention.
In the second study, ‘Raids, Searches and Rapid Removals’ (Chapter 3), an understanding is provided of how migration law marginalizes its violent dimensions. This links to processes that are described as ‘conditions that make a person marginally lawful’ (p. 19). Through previous research and court rulings where officers’ wrongdoings are disregarded when, for example, visa-related litigation is separated from officers’ accountability, Boon-Kuo convincingly demonstrates how migration law organizes irresponsibility.
The third case, ‘“Mums”, “Mafia” and “Ransom Money”: Release from Immigration Detention’ (Chapter 4), is an analysis of bridging visas. This temporary legal status bridges the visa lodgement and decision or removal, and as such, it produces marginally lawful persons. Asking how legal status is mobilized as a means of selective and arbitrary control, it is argued that ‘release decisions are ostensibly contingent on officers’ prediction of detainees’ eventual compliance with visa conditions, but, in practice, conditional release sets people up for non-compliance due to the arbitrariness of conditions and their enforcement’ (p. 114). Drawing on interviews with non-legal advocates and previously detained persons, as well as public accounts, Boon-Kuo analyses three features: requirement of sponsorship, policy regulation of work rights and a recently introduced Code of Behaviour. The latter fosters internalized surveillance and has led asylum seekers to staying indoors, being fearful of such banal activities as playing music, since it might disturb neighbours.
In a final case, ‘Profiling Bad Character’ (Chapter 5), the focus shifts towards substantive visa determinations and the so-called character test. This is a test to protect ‘Australian values’ (p. 143). If not passed, it might lead to a cancelled or refused visa. In this chapter, profiling activities are analysed in a study of 365 cases from the Administrative Appeals Tribunal. Profiling takes place as nationality is utilized as a mechanism to make sense of the honesty and character of non-citizens (Chapter 5). For example, poor Filipinos are presumed to engage in visa fraud to get access to Australian benefits, false material is assumed to be commonplace in Cambodia (p. 166), and it is stated that ‘lying may be endemic in the culture of the Philippines’ (p. 165). The character test turns out to be a flexible, effective tool for getting rid of ‘non-desirables’ and signalling to potential future migrants to stay away. It has been a way to convey Australian values by, for example, rejecting Holocaust deniers’ access to the territory and a way to demonstrate the clear message that the immigration programme is reliable. From the individual’s perspective, the character test is about staying away from any activity that can be perceived as dishonest.
Overall, the case studies identify discretionary authority as the most central element of the legal order of migration. Discretionary authority is thereby also something we ought to take seriously as a source of jurisprudence. It is the basis of legal policy and how this plays out. Through broad discretion in every layer of decision-making, especially at the front end of the migration process combined with practical barriers facing those non-citizens who try to pursue a complaint, it is almost impossible to demand accountability for the violent management of migration. Interestingly, discretion is not limited when detailed rules are adopted in relation to, for example, visa requirements. This is because identification and elimination of threats is always a matter of individual assessments, and hence it is the individual official who is authorized to manage the conditions of stay.
Importantly, the case studies apart from the formal settings also demonstrate experiences of this type of migration policing in the everyday, outside of the legal context. Even though law is the focus, Boon-Kuo manages to demonstrate a situated knowledge-seeking. She reveals a dialectic relation between law and those experiences that follow from being made illegal. The work is presented as an ethnography of legal processes, where law is a set of practices formed via interaction between law and social processes that condition how law is made meaningful for different political constituencies and individuals in any given society. This approach to discretionary migration powers, which highlights how regulations emerge through relations among a variety of institutions and through frameworks of oversight and accountability (p. 46), is crucial for a deeper understanding of contemporary migration law.
As always, when deconstructing violent legal practices, there are indemnities. What makes incidents of exception possible? That is, how can one make sense of technical expertise, ‘judge craft’ (referring to Kritzer, 2007: 157), that contests the legitimacy of, for example, viewing illegality as having a national identity? Examples are given of decisions stating that ‘it is not fair or correct to assess his character by regard to him as a member of a nationality or class of persons’ (p. 169). It would be rewarding to have an analysis of what makes such exceptions possible, and how they are conditioned.
Studying the broad discretionary framework that makes coercive authority probable in low-visibility environments also raises important questions of research ethics. As Boon-Kuo asks of herself, ‘How can I centre these voices as authors of knowledge’ (p. 17) and ‘…how do I act in solidarity…?’ (p. 17). This book is a reflexive and politically conscious work where ‘law’s work in marginalising the voices of those that it makes illegal’ (p. 190) is revealed and more or less related advocacy work over ‘a longer timeframe’ (p. 17) is a central element in the research process. This research also makes an argument for enduring contextualized empirical research. To consider the long-term experiences of those who are affected by the policing of migration is central in this regard. It compensates for the democratic deficit that is so profound in migration policy.
In a concluding chapter, Boon-Kuo argues that law is entrenched in social hierarchies such as race, class, gender and sexuality. Here, the book’s overarching aim is analysed: to elucidate how Australian migration law upholds and reproduces a global apartheid system (Sharma, 2005), where some long-term inhabitants, who at some point migrated to Australia, live without the rights and entitlements of others. Rather than dealing with a particular legal issue, Boon-Kuo states that policing migration has become a matter of ‘creating an overarching environment of permissive intervention’ (p. 183).
Policing Undocumented Migrants, as I see it, is an excellent illustration of a legal cartographic analysis à la de Sousa Santos (1987), which is also a reference used. It illustrates the intersections of legal practices in terms of the vertical intersections of different scales of legal frameworks (individual decision-making, local guidelines, national law, international treaties) and in terms of horizontal interrelations of migration and criminal law, and citizenship and policing. Additionally, the temporal dimensions of migration policing are demonstrated, although not as explicitly.