The detention of foreigners in France: Between discretionary control and the rule of law

The new context of the 1970s–1980s

This perspective, however, needs to be mitigated in view of the recent history of foreigner detention places in France. Most of them were put into operation in the 1970s and 1980s, in a specific social and political context which still largely applies to current immigration policies. After labour immigration was officially discontinued in 1974, and as the Front National – the main far-right party in France – gradually but durably settled into the political landscape, immigration in general was established as a public issue, with control policies specifically targeting irregular immigration by foreigners without a residence permit (Weil, 2005). The measure, for instance, of forcible escort to the border (reconduite à la frontière) came to be gradually distinguished from the deportation of offenders between 1981 and 1986. To complete those measures, immigration detention (rétention) was introduced by law in 1981, and holding areas a bit later, in 1992, while foreigner imprisonment measures were reinforced, both against common-law offenders and foreigners in breach of immigration laws.

While this tougher stance on immigration control certainly was real, one should take care not to miss the progress achieved concurrently in terms of foreigners’ rights and the proliferation of non-profit organizations dedicated to defending these rights (Gomes, 2000). Whereas in the past immigration control tended to be left largely to the discretionary power of street-level bureaucrats, from the 1970s onwards it was precisely regulated and placed under court supervision. This development owes a lot to the theretofore unprecedented intervention of foreigners’ rights organizations, whose judicial activism sparked several major legal breakthroughs (Israël, 2003; Sarat and Scheingold, 1998).

Having been established in this context, immigration detention centres and holding areas came to be ‘judicialized’ (Fischer, 2012; Makaremi, 2010). In both cases, detention was an informal, unregulated policing practice which was ultimately identified and denounced by activist networks, who attempted to have it banned by the courts. The unforeseen outcome of these actions was the legalization of both these modes of confinement, as well as their institutionalization in ways that significantly altered their operational model over subsequent decades. In addition to being inscribed in the law and placed under court control, both arrangements were gradually made durable, leaving behind the precariousness and informality of the early days to become long-lasting institutions, specially designed for the surveillance and management of foreigners. Moreover, they became increasingly specialized: both are managed by police forces, and integrate social workers as well as employees from private companies in charge of accommodation.

Their most specific feature, however, is the inclusion of social activists, whose official and government-subsidized role is to provide legal assistance to foreigners. This started as early as 1984, when activists from a foreigners’ rights organization called Cimade (Inter-movement Committee for Evacuees) were entrusted with the social – and, later on, legal – assistance of detained foreigners, and endeavoured to maintain a critical watch on the conditions of confinement. The same pattern was applied, albeit later, to holding areas, when the Anafé (National Association for Border Assistance to Foreigners) started to carry out the same missions there. The situation of imprisoned foreigners, although specific, does still pertain to this logic: while social activists do provide support to imprisoned individuals in general, the issue of granting the same rights to all prisoners could only be publicly raised when struggles occurred about the specific rights of sentenced foreigners (Mathieu, 2006). Again, Cimade provides regular legal support to imprisoned foreigners. ⁴

Following these developments, current foreigner detention facilities have significantly departed from the camp model, inscribed as they are in an entirely new form of tension. For one, they have constantly been redesigned, as immigration policies were getting tougher. Simultaneously, however, their design and implementation have prompted the creation of public policy networks integrating local and national officials as well as social activists – such as Cimade, whose representatives are physically present in detention centres, but were also involved in the design of several reforms of the institution (Fischer, 2012). Finally, the tension between repression and the respect of Republican principles (today referred to as ‘l’Etat de droit’, i.e. the rule of law) materializes into a complex political configuration where officials and critical, non-state actors struggle or cooperate on migrant deportation and confinement issues. It is in this very configuration that the reforms of the 2000s have taken place, importing, however, new themes and political instruments, especially in terms of foreigner detention.

Tensions with the European Union

The tensions described above also inform the relations of the French government with the European Union. This aspect is all the more crucial as France presided over the EU in 2008, stressing the importance of building a shared immigration policy – an ambition that was clearly reflected in the European Pact on Immigration and Asylum, concluded in October 2008, and followed a couple of months later by the adoption of the ‘return’ directive, which laid the foundations for a common policy for the deportation and detention of migrants (Geddes and Boswell, 2011).

Again, however, to French policymakers, the EU acted as a political space where measures that had already been implemented at the national level could find an outlet, yet at the cost of a series of political and legal constraints. At the political level, French officials thus tried, when negotiating the 2008 pact, to transpose the ‘inflicted’ vs. ‘chosen’ immigration dichotomy at the European level, but had to back out when confronted with the reluctance of some other member states. Moreover, at the national level, French authorities continued to treat certain populations as illegal even though European law clearly authorized them to enter the French territory for an extended stay. France refused, for instance, to recognize the European residence permits granted by Italy to Tunisian and Libyan migrants in the spring of 2011, before being compelled to accept them in the French territory.

Even more symptomatic of a logic whereby populations whose situation is perfectly legal may become ‘illegalized’ is the way in which Roma people of Romanian or Bulgarian origin (the so-called ‘Roms’) have been treated. In France, Roma people have long been considered as the ‘men without roots’ par excellence. As early as 1912, for example, they were under state surveillance by dint of having no permanent address (Pluchon and Richard, 2010). Although discrimination against them on grounds of ethnicity had been consistently avoided by the state in the past, in August 2010 the French Minister of Interior issued an explicit instruction to prefects to deport members of the Roma minority who were nationals of other EU member states. At the European level, moreover, French authorities even tried to make the very presence of Roma in EU territory an issue, again on the basis of ethnicity. The July 2010 meeting of the EU interior ministers, however, which had been called to discuss ‘the issues raised by some members of the Roma and traveler populations in France’, only met with hostility from France’s European counterparts (Sigona, 2011).

This political tension was further aggravated by the dubious use made by French authorities of European legislation regulating the circulation and stay of nationals from newly-integrated member states, in order to justify the deportation of Romanian or Bulgarian Roma people. Indeed, prefectures made strategic use of whatever clauses allowed for forcible removal in case of public disturbance or breach of labour laws, and of the obligation of proving the existence of a stable source of income if one intended to stay for longer than three months. In particular, one reason that was put forward to justify the disbanding of Roma camps, as well as the forcible escort to the border of the affected families, was the obligation of fighting the insalubrity of makeshift camps. Whenever forcible removal was not legally possible, local officials organized Roma people’s voluntary return with financial support from the state – a measure that was quickly denounced as a disguised form of deportation by NGOs, citing multiple pressures exerted on the Roma to make them accept repatriation (Sigona, 2011).

Because it collided head-on with both the French Republican tradition and the institutional and political logic of the EU, the stigmatization of legal migrants thus ultimately brought about very few effective policies. As far as the control and detention of illegal migrants is concerned, however, institutional mutations have been more spectacular in France.

Rationalizing the French deportation and detention scheme

During the same period, the French foreigner deportation and detention schemes were significantly toughened, yet the founding principles of the republican rule of law did not come under frontal attack. From this point of view, the reforms of the Sarkozy era did take into account the criticisms – from both judicial and activist sources – that informed the negotiation, but they still managed to challenge a number of judicial or NGO controls on immigrant detention. Strategically enough, the proposed reforms were introduced not as a limitation of either the rule of law or foreigner rights, but as a modernization and rationalization process of the forcible removal scheme, meant to increase its efficiency. While not removing any institutional barriers, this discourse – drawing from ‘New Public Management’ (Barry et al., 1996) – certainly reorganized them, ultimately blunting their impact.

Hence, as early as 2002, the main issue regarding deportation was how to accelerate and rationalize expulsion procedures. As far as legislation is concerned, successive reforms were aimed at reducing judicial control over police-implemented deportations: the 24 July 2006 Immigration Act, for instance, restricted legal opportunities of objecting to deportation, while the 16 June 2011 Act restricted judicial intervention in the control of detention. Yet the main effort pertained to rationalizing the tasks of both the police and prefectures by imposing management efficiency standards. As early as 2003, quantified objectives were assigned to the police in terms of performing arrests, and to prefecture officials in terms of ‘producing’ deportation measures (Spire, 2008). In October 2003, a ministry circular created, in each French département, a ‘steering committee’ whose task was to coordinate the action of the various services, reporting to a national ‘Animation and Resource Centre’, while imposing upon prefectures the obligation to keep a permanently manned office in the evenings and on weekends in order to increase the ‘productivity’ of deportation measures.

As noted by Walters (2002), the neoliberal state no longer focuses merely on those it wants to remove, but is also concerned with its own administrative practices, trying to improve its agencies’ expulsion capacities. ⁵ Regarding migrant detention, the political developments of the last decades followed the same logic. The maximum immigration detention time surged from 12 to 32 days in 2003, and then to 45 days in June 2011. Simultaneously, immigration detention centres increased in size and number, thanks to a three-year building plan which started in July 2005 and aimed to produce 10 new centres while renovating existing facilities.

But the main development occurred between 2008 and 2010, with significant implications for NGOs working in detention centres. Again, the immigration ministers in charge of this reform avoided anything that might look like a blunt suppression of activist checks and balances, and instead merely rearranged the exercise thereof, allegedly in order to actually improve the protection of foreigners. While Cimade had been the only NGO operating in detention centres since 1984, the Ministry of Immigration offered to give access to many more groups, making a twofold point: (a) plurality was supposed to spark competition among the various NGOs, true to the usual logic of public procurement; and (b) the very presence of several NGOs would make detention centres more ‘transparent’ by multiplying critical eyes on the institution. The more immediate objective of the reform, however, was to replace the highly activist Cimade by less politicized organizations, and to requalify their mission as social, rather than legal, assistance.

This strategy partly bore fruit in 2009, when Cimade, which enjoyed the support of most foreigners’ rights NGOs, had to accept competition from several non-activist organizations which had answered the government’s call for tender. Cimade management, while denouncing this competitive logic, again had to make an activist use of the courts: a series of favourable judgements ultimately confirmed the legal aspect of their mission in detention centres. Yet the basic principle of allowing multiple NGOs was indeed implemented: since January 2010, five different NGOs have been active in detention centres. Their action, however, is being coordinated by a pilot committee, and Cimade is sitting on this committee. In spite of existing tensions, sufficient exchanges have been achieved to justify the publication of their first joint report at the end of 2011 (Collectif, 2011).

Clearly, then, foreigner detention keeps taking place in a state of constant tension between ever-stricter controls and the persistence of institutional checks and balances that political decision-makers both reluctantly allow and strategically exploit as necessary. This tension, far from being exclusively perceptible in terms of the production of detention policies, also exists in the area of foreigner detention conditions, and ultimately influences the management of populations by the various confinement institutions.

The regime of confinement

When detention centres and holding zones were first put into operation, one of the major issues discussed was their non-penitentiary status. The confinement regime was supposed to be less immediately repressive and to guarantee migrants certain rights whose definition remained problematic for a while but which, partly due to the presence of NGO activists in the field, ultimately came to be enforced (albeit often with variations from one facility to another). As far as immigration detention centres are concerned, these rights – which range from being allowed to keep one’s own cell phone to getting access to a lawyer – were defined at the national level by a 2001 regulation, after which they gradually became routinely accepted in practice by all professionals, often materializing in the very architectural layout of the centres.

Whatever the case may be, the non-penitentiary constraint experienced there can be summarized as a reversal of the social condition of ‘removable’ foreigners. Migrants without a residence permit, who used to be invisible and ‘non-existent’ in the eyes of the state, now experience quite the opposite, coming under judicial control as soon as they are detained: their identity and administrative details are recorded and drawn upon to arrange their expulsion. These people, who used to enjoy family or friendship networks in the country which allowed them to live, work and move freely, suddenly find themselves searched and deprived of their personal belongings, and may be put on board a flight to their country of origin without notice. The rest of their detention, then, has no other objective than keeping them within the confines of this surveillance logic by assuring that any alteration of their legal status may immediately result in a physical and possibly violent transfer being imposed. This logic of custody, however, rules out any possibility of rehabilitation, or even employment, for detained foreigners (Fischer, 2012; Makaremi, 2010).

In line with this logic, police officers in charge of the custody are not physically present in the spaces of confinement, which are, however, under constant CCTV surveillance. This ‘remote’ form of control denotes a rearranging of surveillance rather than a lack of it, both in order to acknowledge the non-penitentiary condition of the detainees and to limit the social cost of surveillance. Within the accommodation area, detainees are being cared for by workers from privately-run companies who see to their bedding or eating needs, by healthcare professionals, and by social workers or NGO activists for specific forms of assistance, as mentioned above. Accessibility to these various services can vary greatly – from totally free to requiring a formal request – and is ultimately an integral part of an order that is constantly being negotiated locally between professionals and detainees, a process which does curb, to a certain extent, the use of direct physical violence, especially insofar as NGO activists find themselves in a position to exert some control on police action (Fischer, 2009).

The case of imprisoned foreigners pertains to a specific logic, since they get integrated into a pre-existing prison environment which is hardly suited to their circumstances. Whatever provisions have been made for prisoner rehabilitation in general can only entangle them in paradoxical situations: being supposed to be deported after their detention, they cannot benefit from adjusted sentences or parole. While their irregular immigrant status bars them from working when they are outside, they can nevertheless get legal access to paid work during their detention. More generally, foreign inmates find it difficult to integrate themselves into the tight service-and-favour-based penitentiary economy, being unfamiliar with the codes thereof, and more often than not with the French language as well (Boe, 2009).

As with any confinement situation, however, this is far from a perfectly pacified social order. Indeed, there exists a whole series of resistances to the logic of deportation, some of them instituted, some of them informal.

Instituted resistance: Access to law

In prisons and immigration detention centres alike, legal assistance to migrants can be analysed in the light of research studies on activist uses of the law. NGO activists in detention places confront the state with its own legal apparatus (Sarat and Scheingold, 1998). The assistance they provide stays, however, at the individual level: legal actions rarely aim at using court publicity to turn an individual case into a political cause; rather, they are mostly intended to save given foreign individuals straightaway by having them freed or having their papers put in order. Hence, any politicization of this support owes less to the strategic use of law by these actors than to their position within the institution. The most paradoxical situation occurs in holding areas and detention centres: in both cases, critical NGOs maintain a presence with the official mission of providing legal counselling to foreigners and possibly helping them protest against their forced removal to court. This ‘official resistance’ posture becomes all the more contradictory when NGOs publicly proclaim their opposition to government immigration policies, at which point the actions of their field staff become just as much a legal battle against state arbitrariness as an effort to provide assistance to unfortunate foreigners. ⁶ This core ambiguity in their political positioning is reflected in their daily work. Being in contact with both the police and the detainees, they have access to strategic, confidential inside information from both sides, a ‘mediating’ position that often proves difficult to hold, politically as well as morally. ⁷

In addition, the legal counsel activity directly influences the implementation of removals: by turning legal standards into enabling and constraining tactical resources – in order to have some forcible expulsions cancelled or simply some foreigners freed – NGO activists constantly displace and redefine the legal and material frontier that separates actually deported foreigners from those who may, under various conditions, remain in the country. This redefinition task entails multiple constraints: the affected foreigners must be in a ‘protected’ situation, which is often difficult to prove, as the available evidence generally pertains to family ties in France – i.e. precisely the links that the logic of detention aims at severing (Coutin, 2000). Finally, intended remedies have to be legally workable. In holding areas, some migrants may be granted entry this way, but others, for whom no relief can be found, will be hurled anew in the seemingly infinite maelstrom of international wanderings (Makaremi, 2008). In immigration detention centres, some of the activists interviewed by the author actually – and rather bitterly – considered this contribution to the production of state frontiers a form of migrant ‘sorting’ (Fischer, 2012). Prisons offer a comparable quandary, especially regarding foreigners who get deported because of a criminal offence: although they may have been in the country for a long time, their ‘unruly’ behaviour and the very time they have spent behind bars makes it difficult to gather evidence pertaining to their outside life (Boe, 2009).

It appears, then, that these ‘rule of law’ checks and balances, instead of directly opposing immigration control, rather tend to modulate it by shifting the balance of power between the migrants and the state or non-state actors who intervene in the management of illegal immigrants. While this form of intervention thus stays within the bounds of legality, it has been outflanked over the last few years by more violent forms of subversion employed by foreigners themselves against the fact and conditions of their confinement.

Detention subversion strategies

Although foreigners generally enjoy limited resources by means of which to challenge the social order of their detention, two relatively frequent forms of protest can be mentioned. In both cases, what is being challenged is not merely the internal operations of confinement places, but also the legal and material frontier that is being drawn between migrants who may be deported and those who may legally stay in France, by allowing foreigners to claim some form of belonging to the French society in spite of their irregular status.

In a few – indeed, rare – instances, collective protest movements have grown inside places of confinement themselves. This has never happened in prisons or holding zones, but exclusively in immigration detention centres, where the protracted gathering of important populations of foreigners tends to foster mobilization. In particular, such a movement flared up between the winter of 2007 and the summer of 2008 in the greater Paris area – where several detention centres are located and a dense network of associations served as a relay with the outside world. Detainees combined several distinct modes of action. After having subverted the centre’s operational order by refusing to be counted or to conform to the prescribed time schedule, they set up ‘free’ areas where their claims could be drafted without police control. ‘Registers of grievances’ were written in their rooms and distributed outside by the local Cimade team. Beyond complaints about how the centre was operated, these registers called for the legalization of irregular immigrants, and claimed full integration into the French society – with slogans such as ‘I am French’ and ‘I am integrated’.

The relative success of this movement – which culminated in the burning down of the Vincennes detention centre in 2008 and the sentencing of the alleged perpetrators – should not conceal how rare it is for people to speak out collectively under conditions of detention. Given the limited resources available to them, detainees usually commit only individual acts of subversion, with a significant recourse to the body as the ultimate means of resistance. Although the hunger strike usually is the first mode of expression used by detainees (Siméant, 2009), self-mutilations are even more frequent. Such practices stretch to its extreme the tension existing between the repression of irregular immigration and the respect of fundamental rights. To quote Didier Fassin, detention places then appear more than ever as legally and morally ‘preliminary’ spaces: detained foreigners are ‘external’ enough to the nation-state to be subjected to state repression; yet as long as they remain present in the territory, they do keep enjoying certain rights and their physical integrity must be preserved (Fassin, 2005).

In this context, injuries and death are two situations that the rule of law state cannot let happen without reacting. Moreover, an injured body is an ‘undisciplined’ and uncontrollable body which actually slips through the fingers of the police and, in practice, cannot be deported. In this sense, from the foreigners’ point of view, self-inflicted injuries are a way of subverting the order of detention, while preventing and treating them (including in the medical sense) is part and parcel of order maintenance policing tactics (Fischer, 2012; Makaremi, 2009). Hence, a series of techniques have been developed to prevent people from crossing the line – by spotting vulnerable detainees and not disclosing information about their deportation – or to ensure the possibility of non-lethal restraint of ‘uncooperative’ foreigners, so as to avoid injuries and reduce the individual to a neutralized and ‘manipulable’ body. The humanitarian dimension is thus inseparable from the policing dimension here.