The changing landscapes of immigration detention

Introduction

For over a decade, the study of immigration detention has attracted the attention of a number of punishment and society scholars (Bosworth, 2014; Campesi, 2020; Campesi and Fabini, 2020; Esposito et al., 2022; Fernández-Bessa, 2021; García-Hernández, 2014; Kononen, 2021). These scholars have highlighted the role of immigration detention in expanding the penal landscape and transforming traditional punishment (Bosworth et al., 2018). Researchers engaged in border criminologies and crimmigration debates have provided a set of theoretical tools and empirical evidence that have helped to develop a flourishing body of knowledge. As a result, the study of immigration detention has pushed further the boundaries of Punishment and Society scholarship.

According to this scholarship, immigration detention represents a hybrid measure between the penal system and the migration control system that is most commonly found in countries of the global North. This measure can serve two distinct purposes: to control immigration and to control crime. It is sometimes employed to ensure the expulsion of migrants, but also to manage irregular arrivals. It is sometimes identified as a policing measure and sometimes as punishment. It can be served in prison but also in special facilities, in camps, boats, etc. The duration of detention may be brief or indefinite. Facilities are typically overseen by police, but may also be managed by international organisations or non-governmental organisations (NGOs). Detainees may be imprisoned within these facilities while awaiting either the recognition of asylum or deportation due to their immigration status or for committing a criminal act.

Furthermore, this scholarship research has demonstrated the malleable and mutable nature of immigration detention regimes. For instance, in recent years, there has been a constant mutation of detention facilities (see Ballesteros et al., in this issue; Lindberg, 2022; Tazzioli, 2018; Tazzioli and Garelli, 2020). We are also witnessing the transformation of rationales for detention (Campesi, 2020; Fernández Bessa, 2021; Könönen, 2023); decision-making tools, such as risk assessments (Noferi and Koulish, 2014; Silverman and Kaytaz, 2020); technologies and practices of supervision and control of detainees and ex-detainees post-detention (Sánchez Boe and Mainsah 2021; Ballesteros-Pena, 2021), including the use of artificial intelligence and digital tools; as well as the growing involvement of a multiplicity of stakeholders in this field (Ballesteros-Pena et al., in this issue; Rivas, in this issue). Moreover, the gendered and racialised nature of detention has been highlighted (Bosworth et al., 2016; Canning, 2017; Esposito et al., 2020; Fernandez Bessa, 2019; Fernández de la Reguera, 2022).

While border criminologists have successfully placed immigration detention as a coercive practice that should be included in the discipline, there are still many dimensions that require more nuanced research. In contrast to other manifestations of the penal power, such as prisons, which are more static and predictable, there is no commonly held and fixed concept of immigration detention because the contextual differences and their mutable character make it impossible to have one. Therefore, a number of questions remain open regarding immigration detention. For instance, what is its purpose, where and for how long does it take place, under what conditions, who manages them and who is detained?

Likewise, there is still a lack of conceptual instruments that allow us to capture sub-regional and country variations and to comprehensively understand the particularities of different systems of detention. The conceptual tools and research are circumscribed to case studies of a limited number of countries, usually, the United States and the United Kingdom. This makes them not completely useful to adequately interpret the changing discourses, practices and rationales taking place in different contexts and their complex assemblages. It is not uncommon for different phenomena to be named the same while apparently different mechanisms have some commonalities (Brandariz, in press). The dynamic contexts in which immigration detention takes place are traversed by supranational, national, regional and local dynamics. Despite some common trends that can respond to the multi-scalar nature of immigration detention systems as well as to the transference of political ideas connecting different jurisdictions, immigration detention does not tend to show a significant level of convergence. Consequently, academic debates in this field may be enhanced by fostering dialogues that integrate diverse scales, disciplines and geographical interests.

In order to address these questions and to facilitate an international dialogue on the topic of immigration detention, we organised the International Conference, The Changing Landscapes of Immigration Detention. The conference was held at the Law School of the University of A Coruña in early September 2022, and brought together some 50 scholars from a diverse range of African, American, Australasian and European countries. This event constituted the concluding activity of the Marie Curie project ‘Governmigration’ (European Research Agency, 2018–2021). This special issue contains selection of papers presented at the international conference.

This special issue aims to expand the boundaries of border criminology scholarship in two ways. First, we will contribute to decentre the discipline by including countries not traditionally analysed in these academic debates, such as Germany, Finland, Canada, Spain and Australia. This will not only incorporate contexts traditionally overlooked, but will also focus on discussions of different phenomena taking place in underexplored countries. In fact, such phenomena are gaining relevance and warrant the attention of our discipline. This shift to other contexts will be highly beneficial not only for immigration detention studies but for Punishment and Society scholarship as a whole, as evidenced by the flourishing academic debates and scientific publications emerging from the southernizing and decolonizing criminology (Aliverti et al., 2021; Carrington et al., 2019). Secondly, based on the theoretical and empirical questions explored in the contributions to this special issue, we will propose an analytical framework to facilitate a more nuanced exploration of the diversity of immigration detention. Thus, in this special issue, we put together empirical cases from different geographic locations in order to be able to offer a set of tools that can be useful in analysing the complex landscape of immigration detention.

The following case studies illustrate the multifaceted nuances and particularities of immigration detention. In this way, they demonstrate the dynamic contexts in which detention occurs, resulting in national systems of detention shaped by particular combinations of socioeconomic, political and legal trends, which have been historically configured and connected to countries’ post/neo/colonial histories. Furthermore, other influential factors can substantially influence the manner in which detention regimes are established, including immigration and refugee models and the impact of specific penal traditions on immigration detention technologies.

To begin, in her article Arresting Movement: The History of German Immigration Detention Beyond the Camp, Sabrina Axster challenges the notion of legal exceptionalism traditionally employed in Europe to analyse the violence and human rights violations associated with immigration detention. Axster offers a different perspective, based on a historical analysis, that challenges the notion of immigration detention as a legal exception. She traces the roots of immigration detention in Germany, linking it to historical practices of vagrancy laws, anti-Roma legislation, and the use of prisoner-of-war camps during World War I. Axster argues that immigration detention has its foundations in racism, capitalism and colonialism, particularly targeting racialized minorities. She suggests that rather than being a space of exception, immigration detention is part of a system that already dehumanizes marginalized groups, allowing their exclusion from legal protections.

Jukka Kononen's contribution, entitled Multiple Functions of Immigration Detention: Police Measures in the Governance of Mobile Populations, emphasizes that despite its punitive nature, immigration detention is primarily a police measure used to control deportable non-citizens. By analysing the Finnish detention system, Kononen argues that immigration detention is distinct from the criminal justice system. Furthermore, he notes that it is managed by the police, who possess extensive powers to enforce immigration decisions without effective judicial oversight. While commonly associated with the removal of rejected asylum seekers, immigration detention also functions in crime prevention and the control of irregular migration. According to Kononen, although immigration detention is linked to criminal justice, it is better understood as a coercive police measure operating independently of the criminal justice system, alongside other administrative measures for immigration enforcement. This perspective challenges some theoretical assumptions of crimmigration.

Cristina Güerri's contribution, Border control within Spanish prisons? Intersections between immigration control and imprisonment at the southern border of Europe, focuses on the detention of migrants held in prison. The piece examines how western European prisons serve as ‘places of crimmigration’ for foreign nationals, where they are disproportionately represented, often excluded from rehabilitation efforts, sometimes held in segregated facilities, and frequently facing deportation after incarceration. While previous research has mainly focused on north-western European countries, her study aims to expand the scope of understanding by including Spain, a southern European country. By examining prison regulations and statistics, the article demonstrates that, as in other European countries, border control objectives have influenced Spanish prisons, resulting in imprisonment becoming an exclusionary punishment for certain non-citizens and assigning a new role to the prison system.

Simon Wallace shows in his paper The next jailor: An empirical study of danger to the public immigration detentions in Canada (summer 2021) that immigration detention grounds are often sustained in reasons that target particular groups of ‘undesirable migrants’. In his analysis of the Canadian system, the allegation of dangerousness is frequently applied to long-term racialized migrant residents from the Global South who arrived as children or refugees. In these cases, detention traditionally takes place in provincial jails and not in immigration detention centres. Confinement in prisons, along with the absence of time limits for detention and the frequently low prospects to be finally deported, show that punishment, in the form of incapacitation, continues to play a role for certain groups of migrants and in certain jurisdictions. Finally, the paper shows how other actors beyond border agents, such as police forces, initiate detentions, unveiling crimmigration practices and the diversity of actors that emerge in the immigration enforcement landscape.

Lorena Rivas’ paper A safe haven? Women's experiences of violence in Australian immigration detention focuses on women in detention, a minority traditionally overlooked in the literature. Her paper departs from the violence intrinsically embedded in immigration detention systems in the form of state-sanctioned structural violence. But more importantly, she shows how this violent environment creates the conditions for the emergence, perpetuation and reproduction of multiple forms of interpersonal violence, including intimate-partner violence. Remarkably, her paper delves into the space and time of detention, differentiating between multiple forms of detention, for instance, closed and so-called community detention (open detention) and the impact of the length of detention in the infliction of violence.

Finally, in their paper, The obsolescence of detention: Versatility, expendability and plasticity in the field of immigration confinement, Ballesteros-Pena, Fernández-Bessa and Brandariz diagnose current trends in immigration detention by focusing on southern European dynamics. They acknowledge the resilience of immigration detention but also its decline in importance relative to other immigration enforcement practices in certain locations. On the one hand, there has been an increase in the number of cases of deportation without detention in many jurisdictions. On the other hand, by analysing the hotspot approach and practices alike, it can be seen that the new landscapes of containment practices are flexible and mutable regarding locations and temporalities, with multiple actors, infrastructures and aims combining to respond to novel trends in international mobility, notably the increasing arrivals of asylum seekers.

In summary, the contributions included in this special issue enrich the scholarship by demonstrating the necessity to expand our geographical focus and the type and scale of practices analysed. However, we are aware that the particularities of the different cases, the multiplicity of disciplinary approaches and the tendency towards methodological nationalism make it difficult to engage in international and multidisciplinary conversations.

In order to address these challenges, this introduction sets out a framework for further research in the field. This framework, which is addressed by the various contributions to this special issue in different ways, should be understood as dimensions of analysis represented by axes. Each axis functions as a continuum on which different practices and systems can be placed and examined in order to better understand the commonalities and nuances of immigration detention in different contexts. This framework is not intended to be exhaustive and further dimensions may be added in the light of future research. Nor is it intended to categorise different typologies of immigration detention. In this sense, not all the dimensions need to be applied to all jurisdictions and practices. While they may be useful to characterize a particular immigration system as a whole, they may also be used to explore a particular practice. In this case, we can choose those dimensions that can help us problematise taken-for-granted assumptions about a detention practice or reveal the nuances that emerge from its operation in a particular context. Going beyond global narratives, the following five ‘situated’ dimensions are identified: the rationale of detention, space and time, living conditions, actors and detainees.

Rationale of detention: Historical and sociopolitical trends influence the configuration of countries’ approaches to international mobility and their evolution over time. On the one hand, certain western countries have a long history of receiving asylum seekers and have developed a well-structured refugee system with a humanitarian orientation. Conversely, other countries that have traditionally focused on punitive management of economic and irregular migrants have experienced the opposite trend. Nonetheless, neither the humanitarian nor the punitive trends configure pure models. Indeed, within each country there are instances of curtailed rights for those considered ‘undesirable’ or access to legal status for those viewed as economically functional and exploitable within highly precarious economic systems. Furthermore, over recent years, these traditional trends have begun to change, resulting in ‘asylum countries’ hardening conditions to access and live legally in the country, while other countries have begun to adopt more humanitarian approaches to migration and asylum. Consequently, it is necessary to situate the components of immigration detention and containment practices within their diverse forms on an analytical axis between punitive and humanitarian approaches.