Genealogies of Immigration Detention: Migration Control and the Shifting Boundaries Between the ‘Penal’ and the ‘Preventive’ State

Abstract

The aim of this article is to explore the ambiguous legal status of immigration detention by discussing the main theoretical perspectives on its nature and the functions it plays in contemporary migration policies. After presenting a typological and genealogical reconstruction of immigration detention, the article contends that it should not be seen as being related either to the politics of ‘exception’ or to the expanding reach of ‘penal’ power in a context of mass migration. Instead, the argument presented here is that immigration detention exhibits the characteristics of preventive measures typically related to the exercise of police powers and that its increased role in migration policies should be read in the wider framework of the shifting boundaries between the ‘penal’ and the ‘preventive’ state in contemporary societies.

Keywords

Agamben border criminologies camp form immigration detention preventive state

Introduction

The use of custodial or other measures restrictive of personal freedom in the framework of migration policies – what is now commonly referred to as ‘immigration detention’ – is continuing to increase, especially in main migration destination countries (Bosworth and Turnbull, 2015; Flynn, 2014; Sampson and Mitchell, 2013), where the immigration detention estate has grown dramatically since the late 1990s.¹ Immigration detention is usually of an administrative or civil nature and is applied at the discretion of immigration law enforcement agencies outside the framework of the criminal justice system. It is not a punishment and usually concerns people lacking authorization to enter or remain in the destination countries or whose legal status is otherwise still under evaluation, who are thus deprived of their liberty ‘for reasons that are directly linked to the administration of immigration policies’ (Cornelisse, 2010: 4).

In parallel with the expansion of the immigration detention estate, scholarly debate on the subject has also intensified. However, the field appears divided between two different theoretical perspectives reflecting not only different disciplinary traditions but also the differing histories of immigration detention from country to country.

First, political and social theorists in continental Europe, where immigration detention has a relatively recent history, offer one particular perspective. In countries such as France and Italy, migration-related detention has, from the beginning, been denounced as a legal scandal, somewhat forcing governments to emphasize the alleged humanitarian nature of newly opened detention facilities (Campesi, 2013; Clémence and Fisher, 2008). In response, public debate has denounced the birth of new ‘immigration Lagers’ to emphasize the contrast between immigration detention and the basic principles on the protection of personal freedom enshrined in many constitutions across Europe. This position was also theoretically legitimized by the research of the Italian philosopher Agamben (1998, 2000), who drew a parallel between immigration detention facilities and concentration camps. Following on from Agamben’s work, many have analysed what they termed ‘the camps of our days’, characterizing them as places where the rule of law is suspended, and the exception becomes the rule (Bietlot, 2005; Caloz-Tschopp, 2004; Diken and Laustsen, 2005; Minca, 2005; Mirzoeff, 2009; Rahola, 2007).

A second perspective emerged from the field of criminology especially in the United States and the United Kingdom, where immigration detention has a longer history and has long been regarded as an ordinary administrative measure that does not need to be surrounded by the guarantees typical of the criminal justice system (Kanstroom, 2007; Silverman, 2010; Wilsher, 2012). Many have seen the expansion of the immigration detention estate as yet another sign of the extending reach of penal power in a carceral age, underlining the increasing crossover between punishment and migration control, a process that has been termed ‘crimmigration’ by Stumpf (2006). Even if immigration detention is not intended as a punishment for irregular migration, the argument runs, it is perceived as an inherently punitive measure by those affected, and has a powerful stigmatizing effect, strengthening the public perception that irregular migration is tied to crime and disorder (Bosworth, 2014, 2017; Bosworth and Turnbull, 2015; García Hernández, 2014; Simon, 1998; Turnbull, 2017; Weber, 2003; Welch, 2002).

In spite of the different theoretical matrices, the two perspective share many common points. In particular, both start from the assumption that migration control in contemporary societies largely works by framing human mobility as a source of danger. Both perspectives argue that the definition of migrants as legitimate objects of confinement largely depends on their characterization, not just as unwanted outsiders but also as potentially dangerous subjects. It is here, however, that the two theoretical perspectives diverge. According to the perspective inspired by Agamben, the figure of the migrant is indistinguishable from that of the enemy, representing an existential threat to which the state responds by employing exceptional legal measures similar to those enacted in the event of national emergencies. In the criminologically inspired perspective, the migrant is perceived as a source of danger and disorder to which the state responds via an increasing interlacing of criminal and immigration law.

In both readings of immigration detention, what is in question is its relationship with the criminal justice system, yet the issue seems to be framed very differently. On the one hand, immigration detention is criticized for being an offshoot of the criminal justice system and for ‘overcriminalizing’ migrants; on the other hand, there is criticism of the ‘undercriminalization’ of immigration enforcement, which is implemented through the use of administrative custodial measures outside the ordinary criminal justice framework. In the former case, it is the idea of the expansion of ordinary penal power in the field of migration control that is crucial; in the latter, the exceptional nature of the measures taken to control migration is emphasized. Although the weight of history and the traditions of the different disciplines have had an impact on the emergence of such different theoretical perspectives, I believe that this is also an indication of the inherent ‘complex and contradictory nature’ (Bosworth, 2017; Turnbull, 2017) of immigration detention.

The aim of this article is to explore the ambiguous legal status of immigration detention by discussing the two main theoretical perspectives on its nature and the functions it plays in contemporary migration policies. The article starts with an introductory section which outlines a typology of immigration detention facilities and, then, continues by identifying three genealogies of immigration detention. However, rather than being seen as an exercise in historiographic reconstruction, the genealogies I propose should be read in the light of the subsequent section in which the legal status of immigration detention is discussed in further detail. By contending that the expansion of immigration detention should be seen as being related neither to the politics of ‘exception’ (as in the critical-philosophical perspective inspired by Agamben) nor to the expanding reach of ‘penal’ power in a context of mass migration (as in the criminological–penological perspective), I argue that it possesses the characteristics of preventive measures typically related to the exercise of police powers and that its increased role in migration policies should be interpreted as an indication of the shifting boundaries between the ‘penal’ and the ‘preventive’ state in contemporary societies.

A Typology of Immigration Detention Facilities

There is a complex variety of immigration detention facilities, and previous attempts at classifying them have proved challenging. With the aim of specifying its mandate in this area, the UN Working Group on Arbitrary Detention has, for example, identified at least eight different types of facilities where migrants may be taken into custody: (a) custody areas near borders, (b) police stations, (c) facilities managed by penitentiary administrations, (d) ad hoc facilities, (e) house arrest, (f) international areas and so-called ‘transit zones’, (g) gathering centres and (h) hospitals (Working Group on Arbitrary Detention, 1998: para 33). However, these different facilities may host people with very different legal statuses, which, according to the Working Group, can be divided into four main categories: (a) people who have been denied access to the territory; (b) people who have illegally entered the territory and have subsequently been intercepted by local authorities; (c) people whose authorization to stay has expired; and (d) asylum seekers whose detention is deemed necessary by local authorities (Working Group on Arbitrary Detention, 1998: para 32).

In a report published by the European Parliament, Guild (2005) has proposed a different typology based on the function immigration detention plays in the wider framework of migration policies. This typology has subsequently become commonplace in the scholarly literature on the issue (Cornelisse, 2010: 9–22; Intrand and Perrouty, 2005: 74–76; Silverman and Massa, 2012: 679). Even though the situation may vary from country to country, I consider this typology a useful starting point for my discussion on the legal status of immigration detention.

By following Guild’s suggestions, three main types of immigration detention can thus be identified.

Pre-Admittance Detention or Detention Upon Arrival

This type of immigration detention is used to determine the identity and legal status of those stopped at the border, or intercepted near border areas, and prevent their unauthorized entry. After being apprehended, migrants are detained in facilities commonly known as transit zones, in the case of those near main border crossing points, and holding centres in the case of those near maritime borders particularly exposed to the influx of migrants by sea; in the latter case, this terminology is intended to underline the alleged humanitarian function of facilities in delivering first aid to those rescued at sea or just landed after a dangerous crossing. Very often in these cases, the legal status of the confinement measures imposed by the border authorities is uncertain, and the maximum length of detention remains variable. Moreover, states often treat these detention facilities as if they were situated in a space of legal extraterritoriality, thus limiting the rights that, according to international and domestic legal standards, those deprived of their liberty should enjoy (Basaran, 2008; Cornelisse, 2016a).

Detention of Asylum Seekers

Many destination countries allow the option of depriving asylum seekers of their liberty at some stage in the asylum procedure, and this practice has been explicitly legitimized by the UNHCR itself (UNHCR, 1999, 2012). Detention usually occurs during the initial stage of the asylum procedure, in relation to the need to determine the identity of the applicant, or during the subsequent stages of the procedure, in order to reduce the risk that asylum seekers may abscond. The facilities where asylum seekers are detained are usually referred to as reception or processing centres, to underline the humanitarian nature of the confinement. A particularly problematic aspect of this type of detention is related to the fact that the decision to detain is often taken according to criteria that discriminate between asylum seekers according to their nationality and the supposed credibility of their asylum claim (Cornelisse, 2010: 14). At the European Union (EU) level, prior to 2013, deprivation of liberty during the asylum procedure was explicitly authorized by two directives on the standards for the reception of asylum seekers (Directive 2003/9/EC) and on the procedures for the recognition of international protection (Directive 2005/85/EC) (Cornelisse, 2010: 272; Wilsher, 2012: 396), and the detention of asylum seekers was a widespread state practice (Welch and Schuster, 2005). EU standards on asylum detention were, though, redefined with the enactment of Directive 2013/33/EU, which incorporated many of the guidelines drawn up by the UNHCR on this issue (Tsourdi, 2016).

Pre-Removal Detention

Migrants may be deprived of their liberty following the issuing of an order to leave. In these cases, detention is not meant as a punishment for their irregular stay but as a tool to prevent them absconding during the removal procedure. Irregularity is usually not considered a justification for detention, at least in those countries where irregular immigration is not criminalized per se. This type of detention is what is typically meant when speaking about ‘immigration detention’; it is, probably, also the most widespread form of immigration detention in state practice. Despite international standards now requiring that pre-removal detention should be considered only as a measure of last resort, in line with the principles of ‘necessity’ and ‘proportionality’ (Costello, 2012; Lyon, 2014), many destination countries have adopted policies of mandatory detention, while in those countries in which judicial control features at all, it appears to operate simply as a process for formalizing the steps taken by immigration law enforcement agencies. At the EU level, the so-called ‘Return Directive’ (Directive 2008/115/EC) has set some standards regarding pre-removal detention which must be followed by member countries in the implementation of their domestic return policies (Cornelisse, 2010: 268; Wilsher, 2012: 185).

Immigration detention facilities may be distinguished also according to their residential regime, which usually reflects, at least partially, the function of the facility. The main distinction here is between ‘open’ and ‘closed’ facilities, although tracing a clear dividing line between the two categories is often a complex exercise.

Immigration detention facilities are considered to be ‘closed’ if migrants are not free to leave the premises at will. These kinds of facilities usually operate as ‘holding’ centres for incoming migrants or ‘deportation’ centres for those in the removal process. In these cases, migrants are placed in high-security facilities run, under the authority of the ministry of internal affairs (or similar), by some kind of law enforcement agency (Cornelisse, 2010: 21; Intrand and Perrouty, 2005: 76). Their resemblance to prisons is further reinforced by the fact that in some countries migrants in the process of being repatriated may also be held in ordinary prisons, side by side with those convicted of crimes (Bosworth and Turnbull, 2015; European Migration Network, 2014; European Parliament, 2007: 178). In other cases, migrants may be forced to reside in ‘open’ facilities, with the option of leaving the premises during the day (Bietlot, 2006: 4). These kinds of facilities most often function as ‘reception’ or ‘processing’ centres, hosting asylum seekers awaiting the outcome of the asylum procedure. Given their alleged humanitarian function, in many countries, these facilities are run, under the authority of ministries for social affairs, by welfare agencies or are contracted out to NGOs specializing in assisting migrants and asylum seekers (European Council on Refugees and Exiles, 2015; European Parliament, 2007: 194).

In reality, as already suggested, it is not easy to identify clear boundaries between ‘closed’ and ‘open’ facilities. In many cases, pre-removal facilities and reception centres are co-located, and this may lead to the adoption of security measures affecting the living condition of asylum seekers as well. Moreover, in order to consider a reception centre to be a truly ‘open’ facility, asylum seekers should not be forced to reside there, while opening and closing hours should reflect the management needs of an accommodation facility rather than the authority’s need to carry out surveillance. However, even self-contained reception centres are often managed according to a logic that leads to a number of restrictions on the personal liberty and freedom of circulation of asylum seekers. Those who are forced to reside in these kinds of facilities may indeed only be allowed to exit the premises during certain hours and with the authorization of the managing bodies. Even when they have permission to stay out for longer periods of time, asylum seekers and refugees are not able to move freely within the destination country, as they remain under the obligation to report to the police. Moreover, these reception facilities are often situated in remote or otherwise inaccessible areas (within military premises or in the open countryside), which in effect confine asylum seekers to self-sufficient islands of social segregation (Campesi, 2015a; Fassin, 2005; Szczepanikova, 2013).

Genealogies of Immigration Detention

Beyond the issue of definitions and typology, I believe that an exploration of the historical roots of immigration detention is crucial for a proper understanding of its legal status. In what follows, I will sketch out a genealogical reconstruction of the history of immigration detention and, at the same time, will suggest three different perspectives from which its complex legal status may be explored. The aim is to look at the evolution of immigration detention not only in terms of a simple history of a set of provisions and institutions but also as a complex dispositif in which, alongside the institutional dimension, a specific ‘regime of truth’ is at work (Foucault, 1977a).

By ‘regime of truth’, I mean the specific social representation of migrants that from time to time has offered a political rationale and justification for the adoption of restrictive and custodial measures against them. In this sense, the following analysis can be considered as ‘genealogical’: not only does it not describe a linear path of evolution of immigration detention practices, identifying instead three different matrices as starting points from which to reflect on the many functions that immigration detention may perform in contemporary migration policies, but, above all, it also looks at immigration detention as an aggregate of ‘practices and discourses’ (Foucault, 1977b)² by suggesting that its evolution may be reconstructed starting from three different social representations of the migrant.

Neutralizing the Enemy

From one perspective, migrants may be perceived as enemies endangering the political community which they are trying to enter with more or less threatening intentions. This representation is often reflected in the political rhetoric that pervades common debate on migration, with its obsession with the image of an imminent invasion of potentially hostile foreigners. However, it also references the very first historical examples of detention measures enacted against foreigners.

The dividing line between national security measures and migration controls has always been somewhat blurred, to the point that ‘alien powers’ have traditionally been considered a direct derivation of the executive’s exceptional prerogatives in case of emergency (Chitty, 1820). In fact, the first examples of immigration detention may be traced back to the end of the 18th century, when a series of provisions were enacted in France, the United Kingdom and the United States, authorizing the arrest and expulsions of any foreigner considered dangerous to national security (Henriques, 1905; Kanstroom, 2007). These provisions were justified by the crisis generated by the outbreak of the French Revolution and the subsequent Napoleonic Wars, after which they rapidly fell into disuse. The beginning of the 19th century saw the start of a long period of substantially free circulation of people across borders that only came to an end towards the end of the century, when immigration control became an issue of ordinary governmental policymaking, entirely independent from the prerogatives related to the protection of national security (Torpey, 2000).

However, the association between the ‘foreigner’ and the ‘enemy’ has always been a rich reservoir of symbolism, driving the introduction of restrictive migration policies at various ‘critical’ moments in the history of main destination countries. The most dramatic example of this occurred during the second decade of the 20th century when the xenophobia triggered by World War I led governments to resort to the detention powers provided by old ‘alien acts’, which had remained substantially dormant for the entire 19th century. As war became a dominant and pervasive phenomenon shaping every dimension of political life in Western countries, migration policies were moulded to strategic needs. Liberal and universal perspectives that had inspired migration policies throughout the 19th century thus collapsed, and migration control became definitively associated with the protection of national security. This led to the enactment of a number of provisions expanding the powers of the state at the expense of the rights of foreigners who were subject to surveillance and internment (Noriel, 1991; Saunders, 2003; Torpey, 2000; Weglyn, 1996).

The association between migration control and national security has become firmly re-established in the context of the war against terrorism launched by the US government and its allies. Contemporary social and political sciences have already described the incipient process of the ‘securitization’ of migration policies that has followed as a consequence (Ceyhan and Tsoukal, 2002; Huysmans, 2000), illustrating how the powers over foreigners’ liberty granted to the executive by migration laws may be deployed in the fight against terrorism (Kanstroom, 2007: 225; Wilsher, 2012: 212). Similarly, legal scholars have suggested that over recent years migration law has evolved into a kind of ‘enemy law’ allowing the executive to suspend ordinary legal guarantees against arbitrary detention in the face of the need to protect the safety of the community (Brandariz Garcia, 2013; Krasmann, 2007).

Governing Dangerous Mobility

From a different perspective, migrants may be seen not as enemies posing an existential threat to the community but as a source of disorder that the state must try to limit and govern. Sure, migrants are often perceived as unreliable individuals who should be subject to specific surveillance measures to stop them attempting to evade controls, but according to this perspective, it is not their presence per se that is dangerous; rather it is their uncontrolled influx that is seen as a potential source of problems. This perspective offers another position from which to explore the genealogy of immigration detention.

It was with the enactment of the first systematic immigration laws, at the end of the 19th century, that measures restricting the personal liberty of foreigners became commonplace in main destination countries. However, these measures were not aimed at protecting national borders from potentially hostile foreigners but rather were mainly conceived as an administrative tool in the hands of newly created immigration law enforcement agencies called on to distinguish between the ‘desirable’ and the ‘undesirable’. Potential criminals, suspected prostitutes, the mentally ill, ‘lunatics’ and people who were deemed at risk of becoming a ‘public charge’ would have thus undergone strict administrative checks on entry to the country with the essential objective of preventing the potential spread of disorder. In this context, detention established itself as a tool for keeping migrants under the control of the immigration law enforcement agencies during pre-admittance and pre-removal procedures (Kanstroom, 2007; Ngai, 2003; Pellew, 1989; Silverman, 2010), but the legal scholars of the time did not justify the possibility of depriving foreigners of their liberty outside the framework of the criminal justice system by linking it to the executive’s prerogatives for the protection of national security. Rather, immigration detention was clearly described as an administrative tool similar to the ordinary precautionary measures the police were allowed to use in governing other kinds of social danger (Clark, 1929; Darut, 1902: 32).

Many of the powers over foreigners’ personal liberty with which immigration law enforcement agencies are currently entrusted reflect a similar precautionary logic and are essentially described as tools for achieving more effective control of irregular migration. Whether immigration detention is used to hold incoming migrants while verifying their legal status and identity or to keep those awaiting removal under police surveillance, it is essentially justified by the ‘risk of flight’ associated with potentially undesirable migrants considered likely to attempt to escape controls. Seen from this perspective, the role that detention has gained in migration control should not be considered as an example of the politics of exception, rather it may reflect the spread of preventive control and surveillance measures in contemporary societies (Harcourt, 2007; O’Malley, 1992, 2004; Zedner, 2009). Such measures are eroding existing legal standards operating below the threshold of the emergency without any dramatic call for a suspension of constitutional guarantees (Bigo, 2002; Neal, 2009). The legal framework regulating immigration detention may be considered as a further example of the expanding influence of the precautionary logic of ‘risk management’, according to which law enforcement agencies are called on to neutralize the danger that some individuals are deemed to present to social order even before any actual harm has been produced.

Humanitarian Confinement

From a third point of view, foreigners are not described as potential enemies, nor as untrustworthy dangerous individuals ready to escape controls, but are instead placed under the peculiar legal regime regulating ‘humanitarian emergencies’. This regime is typically activated when social or political crises trigger large-scale movements of people that states are forced to manage by enacting extraordinary measures, which often entail some restriction over personal liberty.

To an extent, this perspective reflects what I consider the third historical matrix of immigration detention, recalling as it does the reception and control measures adopted by many Western countries in the tragic era between World War I and World War II. During this period, hundreds of thousands fleeing war and persecution were confined in refugee camps and shelters across Europe (Bernardot, 2008: 94; Noriel, 1991: 117). These facilities were created to offer hospitality and protection to refugees – various humanitarian organizations were in fact directly involved in their management (Noriel, 1991: 117) – however, the reality was that refugees were protected only if they accepted restrictions on their personal freedoms. The regime within the facilities was often quite strict, and reception frequently turned into a form of control and surveillance. In order to respond to what were believed to be the management needs of large reception camps, those in charge were entrusted with wide disciplinary powers over refugees, which meant that many camps were, ultimately, run under the absolute authority of humanitarian agencies (Bernardot, 2008: 128).

Many of the restrictive measures to which asylum seekers may be subjected today recall the experience of refugees in the period between World War I and World War II. Despite their apparent benevolence, humanitarian policies can indeed be very ambiguous in their aims and often legitimize the confinement of asylum seekers in restricted places. This happens especially when the humanitarian rhetoric is hegemonized by state agencies becoming a strong legitimizing tool for the adoption of exceptional reception measures which end up being detrimental to the personal freedom of asylum seekers (de Larrinaga and Doucet, 2008; Fassin, 2011; Watson, 2011). Asylums seekers who are hosted in reception facilities receive a form of protection that satisfies their most vital and imminent needs, but very often this protection is offered on the proviso that they accept being placed under the absolute control of humanitarian agencies and even being confined within reception centres or otherwise restricted zones (Agier, 2006).

Moreover, by making asylum seekers wholly dependent on humanitarian agencies, the reception system allows immigration law enforcement authorities to perform a subtle social-control function by confining individuals to facilities that can easily be controlled and are completely isolated from local communities. Such control may nonetheless be exercised even if the law does not provide for any form of detention for asylum seekers or any other explicitly repressive means for keeping them in custody. Reception centres may indeed become spaces of confinement by exerting a hard-to-resist centripetal force which is able to contain asylum seekers more effectively than any physical wall. This is especially so when access to humanitarian help and other welfare provision is made entirely dependent on residence inside reception centres, which, in turn, become spaces of social segregation that asylum seekers are unable to leave given that they lack the social and economic resources needed to survive outside (Campesi, 2015a; Fassin, 2005; Szczepanikova, 2013). It is for these reasons that I put forward the idea of ‘humanitarian confinement’, characterized by a reception system that offers help and hospitality to asylum seekers, while subjecting them to a subtle form of control enacted through humanitarian agencies.

Theoretical Perspectives on Immigration Detention

When entering immigration detention facilities, migrants face a downgrading of their legal status, becoming subject to a peculiar custodial regime underpinned by fewer legal guarantees than would be the case in an ordinary prison. All the genealogies I have considered, while tracing a range of possible historical roots of immigration detention, converge in describing it as an administrative measure which is at odds with the standards for the protection of personal liberty enshrined in the constitutions of many destination countries. Detained or confined migrants are seen as potential enemies, as untrustworthy dangerous individuals ready to escape controls or as victims to be entrusted to the care of humanitarian agents and are never recognized as full legal subjects. This has led some to suggest that migrants may literally be reduced to being legal non-persons or ‘de facto stateless’ (Wilsher, 2012: 15). Considered as neither meeting the criteria for return to their country of origin nor for admission to the destination country, detained or confined migrants remain trapped in a true ‘legal limbo’ to which the only possible response seems to be their potentially indefinite custody. This is why many have drawn on Agamben’s (1998, 2000) influential discussion of Arendt’s (1973) work and have described immigration detention facilities as the ‘camps’ of our times (Bietlot, 2005; Caloz-Tschopp, 2004; Diken and Laustsen, 2005; Minca, 2005; Mirzoeff, 2009; Rahola, 2007).

Although I clearly see the inherently problematic legal nature of immigration detention, I nevertheless believe that any juxtaposition between immigration detention and concentration camps is substantially misleading, primarily because the very notion of ‘camp’ is extremely ambiguous. Historians trace its origin back to colonial times, and in particular to the camps created by the British during the Boer War and to the Spanish ‘reconcentration’ camps in Cuba (Kotek and Rigoulot, 2000: 31–32), but the notion of ‘camp’ does not necessarily refer to detention or otherwise secured facilities, as it is also commonly used to identify reception facilities designed to host groups with particular housing needs (Bernardot, 2008: 33). The notion of ‘camp’ is today often associated with the totalitarian experience and with the so-called ‘concentrationary universe’ (Rousset, 1946), especially when the reference is to places of custody. In the face of ‘extermination’ camps, however, no comparison seems sustainable to the point that the very possibility of using the term to refer to any other experience of human rights violations appears to be absolutely inconceivable. In this sense, it is true that ‘camp’ is a ‘sick word’ charged with polemical meanings and apparently devoid of any analytical–descriptive potential (Kotek and Rigoulot, 2000: 8).

Agamben has explored the possibility of using concentration camps as the ‘lens’ through which to carry out an analysis of the transformation of power in contemporary societies. According to Agamben, insofar as those deprived of their liberty inside camps are also deprived of their ‘right to have rights’, the camp can also be considered to be ‘the most absolute biopolitical space ever to have been realized, in which power confronts nothing but pure life, without any mediation’ (Agamben, 1998: 97). Concentration camps were a typically extrajudicial place of confinement, where all the figures of ‘social otherness’ could be taken into custody by the police (Bernardot, 2008: 186; Kotek and Rigolout, 2000: 4). This has led Agamben to suggest that the legal regime regulating their functioning was not ordinary (criminal) law, but rather the special regime of ‘security measures’ (Schutzhaft in German) enacted under the legal framework of national emergencies (Agamben, 1998: 96; 2000: 37).

At the risk of trivializing a concept of great historical significance, Agamben has also suggested that concentration camps, as a result of their administrative flexibility, can be considered as ideal-typical institutions offering a theoretical key to analysing the exercise of power in contemporary societies. Every time a ‘state of exception’ is in effect created through the establishment of custodial facilities functioning outside the ordinary legal framework ‘we must admit that we find ourselves virtually in the presence of a camp…independent of the kinds of crime that are committed there and whatever its denomination and specific topography’ (Agamben, 1998: 98). This has led many to consider the ‘camp form’ as a heuristic model which can be used to analyse different kinds of custodial or housing facilities such as immigration detention facilities, refugee camps, and other kinds of premises where migrants may be deprived of their freedom because of their personal status and not as a consequence of their criminal behaviour.

Although theoretically attractive, I believe that any attempt at framing the legal status of immigration detention through the lens of the state of exception is not entirely convincing. The logic of the emergency seems sometimes to be the main rationale for the adoption of administrative custodial measures against migrants in contemporary society. A national or homeland security rationale is at work, for instance, when migration law is used in the framework of antiterrorist activities, although many countries have introduced counter-terrorism measures that make the use of immigration detention or deportation a residual strategy in this context. Most of the migrants detained each year in the main countries of destination are not suspected terrorists but simply irregular migrants or potential ‘bogus’ asylum seekers suspected of circumventing rules on entry and stay. The logic of humanitarian emergencies may have had a greater impact in stimulating the proliferation of migration-related accommodation facilities, particularly in countries exposed to the influx of asylum seekers by sea. But, as Fassin has rightly asked (2011: 151), ‘does the form give us the content?’ Can we use the basic concept and characteristics of the concentration camp to analyse the situation in reception facilities for asylum seekers? The main political rationale behind the functioning of these facilities is not to eliminate a population perceived as threatening and hostile but rather to avoid the dispersion of people perceived as ready to evade controls and breach immigration law (Campesi, 2015a; Fassin, 2005; Szczepanikova, 2013).

Moreover, by looking at immigration detention through the lens of the state of exception, social and political scientists have, as a consequence, been unable to grasp the scope and implications of the process of ‘normalization’, or even, according to some, of the ‘constitutionalization’ (Cornelisse, 2016b) of immigration detention, which has nevertheless been widely described by legal scholars (Lyon, 2014; Wilsher, 2012). Immigration detention facilities cannot be seen as spaces where the rule of law is suspended, functioning in a substantial ‘legal void’; rather, it is precisely the need to accommodate state practice within rule of law principles that has stimulated an excess of normative production, leading to the proliferation of standards and regulations the effect of which has been to transform immigration detention facilities into spaces of ‘legal saturation’. This attempt at ‘proceduralizing’ immigration detention has perhaps diluted and trivialized the logic of the exception or, as Lhuilier argues, has amounted to a transition ‘from the politics of exception, to the exception as politics’ (Lhuilier, 2007: 17). In any case, this has stimulated the emergence of a derogatory legal regime authorizing restrictions on the personal freedom of migrants by administrative means, without the need to officially proclaim the suspension of the rule of law or any other constitutional guarantees, as usually happens in a state of emergency, in the name of efficiency in the routine governance of migration.

If migration-related detention facilities are not spaces of exception, can their use be properly framed as a form of punishment? Immigration detention is commonly justified as a tool for achieving more successful border control enforcement, but this function is more proclaimed than real, as migration control policies in general (Castles, 2004; Czaika and de Haas, 2013) and deportation policies in particular (Ellermann, 2008; European Migration Network, 2017) are notoriously ineffective. Because of this, the scholarly literature on the subject has tried to explore the ‘unofficial’ functions of immigration detention, emphasizing its essentially symbolic (Mainwaring and Silverman, 2017) or punitive character (García Hernández, 2014). Certainly, as some empirical studies have shown (Bosworth, 2014, 2017; Campesi, 2015b; Leerkes and Kox, 2017), immigration detention can be intended to have a particular function of deterrence, and this brings it very close to the functions performed by penalties in the criminal justice system. In a number of publications (Bosworth, 2017; Bosworth and Turnbull, 2015; Bosworth et al., 2018; Turnbull, 2017), some criminologists have developed this argument at the theoretical level and have tried to explore how far penal logics and practices influence migration control. In spite of the official labelling of immigration detention as a non-punitive measure, their argument runs, it is in fact experienced as punishment by those subject to it, and often intended as such by the officials called on to enforce it. Moreover, it is precisely the claim that immigration detention’s function is not punishment that has allowed the reach of penal power to be extended while also evading most of the core legal and procedural safeguards of the criminal justice system.

In spite of the fact that I do not want to deny the ‘lived experience’ of the many individuals who suffer from the exercise of these forms of coercive power (Bosworth, 2017: 13) and that I clearly see the cynical ‘subversion of the criminal process and its human rights protections’ (Zedner, 2016: 29) inherent in affirming that immigration detention is not punishment, I am not entirely convinced that looking at immigration detention through the lens of the category of ‘punishment’ is the appropriate way to understand its legal status.

Although, as already mentioned, some studies have explored the hidden punitive logic of immigration detention, others have emphasized that different rationales may lie behind states’ continued investment in such ineffective and questionable practice. For example, Leerkes and Broeders (2010) have suggested that detention may be used as a tool to prevent public order disturbances associated with migrant pauperism, and a recent empirical research study (Campesi and Fabini, 2019) has further strengthened this hypothesis by suggesting that immigration detention is used by the police for the purpose of managing ‘dangerous’ populations in urban areas. According to this point of view, immigration detention should essentially be regarded not as a form of punishment but as an example of the increasing influence of the logic of preventive control that provides law enforcement agencies with expedited control tools which operate at the margins of the criminal justice system, with the aim of maximizing their capacity to anticipate alleged threats and contain risks.

In recent years, scholars working in the field of criminal law theory (Ashworth and Zedner, 2014; Ashworth et al., 2013; Carvalho, 2017) and criminology (McCulloch and Pickering, 2009; Zedner, 2007, 2009) have suggested that a gradual shift from a control model based on traditional penal measures to one based on preventive measures has taken place. Although it is generally agreed that this preventive shift has been accelerated by counter-terrorism policies, the idea that a new form of ‘preventive state’ was in the making emerged as early as the late 1990s when the term was used to refer to the way states were adapting in response to the risks and insecurities typical of late modern society (Albrecht, 1997; Denninger, 1988; Steiker, 1998). But what exactly is meant by the ‘preventive state’?

Very often, scholars use this concept without defining it, contrasting it with the idea of a ‘penal state’, in order to highlight the difference between ‘punishment’ and ‘prevention’ as models for state control. According to common understanding, the ‘penal state’ investigates and adjudicates on criminal acts, and state control is mainly exercised by enforcing criminal laws and levying punishment for their violation. The dominant logic of criminalization and punishment is retrospective, and coercion is used only after a crime has been committed, in proportion to the seriousness of the offence. Scholars saw the emergence of a ‘preventive state’ in the enactment of a range of measures that allow coercive intervention by the state before harm is done or an offence is committed, imposing restraints on certain individuals believed to be particularly dangerous or criminalizing harmless conduct that is considered predictive of later criminal behaviour.

The emergence of a ‘preventive state’ is a source of concern from a number of different perspectives. Preventive measures extend the possibility of using coercive powers and encroach on individual liberties; they also evade the limits and safeguards provided for by criminal law and procedure. In the ‘preventive state’, preoccupation with the individual offenders, their culpability and eventual reintegration in society is overlaid with concern for identifying dangerous individuals and neutralizing the risk they pose to society. The personal liberty of individuals is thus restricted not because of harmful acts they have engaged in but because of harmful acts they may engage in in the future, with this justified on the basis of an individual’s personal traits and alleged propensity to crime. In the end, in the ‘preventive state’, it is modern legal subjectivity itself which is explicitly challenged, and individuals are no longer considered as autonomous subjects capable of acting rationally but regarded as pure risk bearers.

The reality of the distinction between the ‘penal’ and the ‘preventive’ state can obviously be questioned both from the theoretical and historical points of view. However, in spite of this, I believe that the distinction can withstand criticism.

From the theoretical perspective, one can certainly argue that, at least in the utilitarian tradition, a preventive function has always been attached to punishment. The very fact of threatening someone with a punishment presupposes a preventive effect, and prevention is a widespread goal of criminal justice (Shauer, 2013). Notwithstanding, this prevention entails a decisive shift not in the overall justification for coercive state intervention but rather in its temporal dimension or its distribution. In the classic liberal model of criminal justice, evidence that an individual has committed an offence is still a necessary predicate of punishment, and penalties are essentially coercive measures enacted on account of harm done. This is summed up by Ashworth et al. (2013: 1) who stated ‘(w)hatever its overarching rationale or justification, in its implementation the core of the criminal law punishes persons for their past behaviour’. In contrast, according to the ‘preventive state’ thesis, state intervention is authorized in anticipation of what ‘has not yet occurred and may never do so’ (Zedner, 2007: 262). Moreover, when state intervention is preventive, a different logic is involved as the ‘type’ and ‘quantum’ of the measure enacted is calibrated not on the nature and seriousness of the offence but only on the necessity to avoid future harm, especially in the light of the alleged risk posed by the individual concerned. Whereas the focus of punishment is the criminal act, preventive measures are addressed mainly at dangerous individuals.

From a historical standpoint, one can argue that preventive measures are nothing new and that their origins can be traced back to the police’s prerogative to ensure public order and security. This prerogative has traditionally run in parallel with the ordinary penalties set forth by the criminal justice system and entails a true subsystem of preventive police measures aimed at governing dangerous individuals (Campesi, 2016; Dubber, 2005, 2013; Ferrajoli, 1990). According to some, from the latter part of the 19th century onwards, the criminal justice systems of liberal democracies substantially retreated from ideas of preventive policing in favour of systems more narrowly constructed on retrospective prosecution and punishment (Ashworth and Zedner, 2014: 50). In spite of this view being somewhat questionable, in particular as regards the history of penal systems in continental Europe, where the concept of ‘social defence’ has had a more lasting influence and preventive measures have played a central role in social-control strategies (Fijnaut, 2017; Pifferi, 2016), I broadly agree with those who argue that from the end of the 20th century ‘the post-crime orientation of criminal justice is increasingly overshadowed by the pre-crime logic of security’ (Zedner, 2007: 262; 2009: 73). Ultimately, the ‘preventive state’ thesis maintains that there has been a change in the balance between the punitive/preventive dimensions that have traditionally characterized state control with an increasing shift in favour of the preventive side.

I believe that the legal status of immigration detention can be understood in the framework of this shift from the ‘penal’ to the ‘preventive’ state. While there are certain features of immigration detention that can be related to the symbolic dimension of penalties, in my view, it clearly belongs to the family of preventive measures, given that in its implementation it follows the logic of a control model in which the exercise of coercive powers is not justified on account of ‘individual responsibility’ and ‘culpability’, but rather is based on the construction of abstract typologies of ‘dangerous individuals’ identified as presenting risks to society. And this somewhat brings us back to the starting point for this section as, according to this argument, migrants placed in detention are never considered to be full legal subjects but are taken into custody precisely because they are deemed irresponsible and untrustworthy. However, once again, it must be underlined that this downgrading of migrants’ legal subjectivity does not take place within the context of a suspension of constitutional guarantees, as typically happens when a state of emergency is proclaimed, but rather is an expression of the ordinary policing practices of preventive control.

This is not to argue that immigration detention and preventive measures in general are less problematic from a rule of law point of view. While I have argued that immigration detention facilities should not be considered as spaces of ‘legal void’ or ‘legal black holes’, that is not to say that one should not be wary of what Dyzenhaus (2006) has called legal ‘grey holes’. The ‘proceduralization’ of immigration detention has certainly given it some degree of legality, allowing governments in main destination countries to claim that migrants are detained according to the principles of the rule of law, and initially I suggested, albeit tentatively, that this may amount to a trivialization of ‘the emergency’. After discussing the complex relationship between punishment and prevention, however, I am now in a position to advance my argument further by suggesting that immigration detention belongs to the category of police preventive measures but, unlike Dubber (2005, 2013), I do not see these measures as coinciding with the pure sovereign prerogative exercised in a state of exception. From my perspective, police powers are set and regulated according to a third level of legality addressed at ‘dangerous individuals’ lying between the ordinary criminal justice system, reserved for occasional or otherwise trustworthy offenders, and the exceptional dimension of national security measures targeting the enemies of the state.³ This is a model of legality that is paradoxically more problematic for the protection of human rights as, unlike the legal regimes of national emergencies on which attention is usually focused, police preventive measures may violate human rights in less striking but more pervasive way.

Final Remarks

In this article, I have considered from a genealogical standpoint the main theoretical perspectives which connect immigration detention to the politics of exception and to the changing nature of punishment in the context of mass migration. My analysis seems to suggest that while both perspectives offer relevant theoretical insights, neither is entirely convincing in their understanding of immigration detention.

On the one hand, even if, as suggested by Galina Cornelisse (2010: 26), immigration detention can be considered a true ‘blind spot’ of human rights, its legal regime cannot be compared to the suspension of the rule of law to protect national security in exceptional circumstances. Sure, at certain points in history, there has been a clear overlap between the ‘concentrationary universe’ and the power to detain foreigners provided by immigration laws, and even nowadays, immigration detention can easily be abused in the framework of antiterrorist policies or humanitarian emergencies. This notwithstanding, I do not think that the main function of immigration detention today is associated with the protection of national security and the politics of exception. Rather, I think that its legal status mainly reflects the ‘normality’ of preventive police powers aimed at controlling and containing the risks and dangers associated with human mobility.

On the other hand, although it is undeniable that immigration detention can be perceived as a form of punishment by the affected migrants, its functioning seems to reflect, to a greater extent, the proactive logic of preventive control rather than the retrospective logic of penalties. The logic that lies behind immigration detention is that irregular migrants and asylum seekers should be regarded as inherently untrustworthy individuals who need to be subjected to special precautionary provisions. This creates a link between migration law and criminal justice, not only in the broad sense that the identification of foreigners as a potential threat ‘licenses exclusionary and often highly coercive measures’ (Ashworth and Zedner, 2014: 228) but also in the more specific sense that these measures provided for by migration law can be easily abused as pre-emptive crime prevention tools by law enforcement agencies.

In conclusion, I believe that the expansion of immigration detention should not be read as an expression of the dominance of the paradigm of exception in contemporary politics, nor as a sign of the growing reach of penal power, but rather as an indication of the shifting boundaries between the ‘penal’ and the ‘preventive state’. In this peculiar political formation, the emphasis is placed more on pre-emption of harm and the neutralization of dangerous individuals rather than on the traditional retrospective logic of imposing penalties for actions undertaken. This shift is inherently problematic for the protection of human rights not because it implies an explicit suspension of constitutional guarantees but because it entails a subtler shift to an approach that operates below the threshold of the emergency, as part of the daily practices of law enforcement agencies.

As the genealogical reconstruction I have carried out has clearly shown, there has always been a link between the evolution of migration policies and security concerns. However, rather than protecting the community from existential threats in cases of emergencies, the inherently preventive nature of classic migration law was mainly related to the need to control the migration of individuals deemed to be undesirable, or otherwise at risk of becoming a public charge. Even today, migration governance may occasionally be framed in terms of security and emergency management, especially in situations perceived as ‘critical’, but from my point of view, in the wider framework of migration control policies, detention mainly functions as a tool to contain, spatially and temporally, the most elusive group of people on the move (Mountz et al., 2012). Rather than being an expression of a desire to completely exclude migrants and end their mobility altogether, it is a governmental tool aimed at selecting, containing and neutralizing a specific subgroup of individuals whose mobility is perceived as inherently dangerous.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Giuseppe Campesi

Notes

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