The Prison Courtyard, by Vincent van Gogh
COVID-19 has uprooted old certainties. This can raise new ethical questions. It also gives cause and opportunity to re-examine existing social and political institutions and practices. One of these is immigration detention. The pandemic has resulted in a near emptying of the UK detention estate. The last available statistics, published in May 2020, recorded that 313 people were held in Immigration Removal Centres. On 31st December 2019, the number was 1,637. We face a choice: do we re-fill them, or do we do something else?
It is important to be clear about what is at stake. In the UK, immigration detention constitutes indefinite incarceration in prison-like conditions via a purely administrative procedure, for the purpose of immigration control. The decision to detain or continue detention is frequently taken without regard for either purpose or impact on the person. Many of those who have been released during the pandemic have been forced to rely on the courts; bail judges have granted bail where the Home Office refused it in the vast majority because removal, the ostensible purpose of detention, has not been feasible in most cases. For the last two decades, thousands of people have entered detention each year. Some stay there for years. The experience, even if short, is profoundly traumatic. The Jesuit Refugee Service UK has just published a report Detained and Dehumanised: the impact of immigration detention based on interviews with people who have been detained, in centres across the UK, at different points over the last 20 years. My colleagues and I conducted these interviews. We heard story after story of lives ruined by detention. People were still suffering the psychological and physical impact of detention years later. Those who had been tortured in their countries of origin said it was like being tortured again. People had come here for sanctuary and been imprisoned. And these findings are not surprising. They are the latest in a huge body of evidence demonstrating that detention is profoundly damaging to individuals and communities. We are talking about a practice that is antithetical to human dignity and cannot support right relations between those enacting it and those subjected to it. What good are we trying to achieve?
The standard answer would be immigration control, specifically forced removal of people without leave to remain. There are at least two problems with this, of different natures. The first is that our asylum and immigration system is in urgent need of reform and its decisions can be unjust and often dangerous. At JRS UK, we regularly work with people refused asylum and forced to struggle for years before finally being recognised as refugees. The second is that over half of those detained are released back into the community. As a mechanism for removal, detention is ineffective. More fundamentally, even if it did effect forced removal, and even if this were deemed a good, it is hard to see how this good could truly be proportionate to the vast human cost.
As we go forward, we need to do more than make permanent what the pandemic has brought about. We need to be ready to challenge and repent of the politics that has birthed and supported that practice, that has not seen human persons as a priority. And this involves acknowledging those aspects of detention that have proved intransigent in the face of COVID-19.
Most of those who now remain in detention are ex-offenders and the number of people held under immigration powers in prisons remained “relatively stable” when the last statistics were published.
The indefinite detention of ex-offenders is sometimes invoked as a wider defence of the detention estate, rather than a subject itself in need of examination and justification. For example, when challenged on the practice of indefinite detention in relation to Detained and Dehumanised, the Home Office responded that “[t]hose in immigration detention are often dangerous foreign criminals...”. MPs arguing against a time limit on detention in parliament earlier this week cited their need to protect their constituents from foreign criminals - despite the fact that those held under immigration powers have served their sentences, and their British-born counterparts have been released. This discourse supports a system that has doubly dehumanised those it deems “foreign national offenders”; that seeks to hold them under immigration powers even during a global pandemic, and, when the courts demand that it does release them, is not set up to support ex-offenders in the community, because it does not wish to.
The indefinite detention of foreign ex-offenders, where their British born counter-parts have been released creates a two-tiered criminal justice system that undermines any connection between crime and punishment. One individual who contributed to Detained and Dehumanised, who had been transferred to detention from prison, explained, “It was just one punishment, but I’ve done it about five times.” This in itself should disturb anyone committed to rehabilitative justice. Furthermore, the heavy focus ‘foreign national offenders’ arises in the context of laws and policies that both criminalise migrants and ‘other’ people with once secure immigration status, raised in Britain if they are convicted of a crime. These people are overwhelmingly Black, Asian, and minority ethnic.
First, under the hostile environment, immigration infractions are increasingly criminalised. For example, the Immigration Act 2016 introduced a distinct criminal offence of working without permission to do so. This is accompanied by the wider criminalisation of daily activities, such as driving, for those without immigration status. Asylum seekers and many other migrants are thus labelled “foreign national offenders” for actions that would be legal for a British citizen, sometimes for trying to earn enough to eat. The double dehumanisation of “foreign national offenders” is closely connected to the dehumanisation-cum-criminalisation of extremely vulnerable migrants.
Second, many classed as “foreign national offenders” have spent their whole lives in Britain. Accordingly, Stephen Shaw found in his second government-commissioned report on the welfare of vulnerable people in detention that “a significant proportion of those deemed Foreign National Offenders had grown up in the UK…had been to UK schools, and all of their close family and friends were based in the UK. Many had no command of the language of the country to which they were to be ‘returned’, or any remaining family ties there.” He recommended that “[t]he Home Office should no longer routinely seek to remove those who were born in the UK or have been brought up here from an early age.” Detaining and deporting people who have grown up in Britain tears apart communities, rather than protecting them. It refuses to acknowledge the histories in which they are rooted and the lives they have lived. It applies a racist double standard to exclude and cast out those who know no other home. This is not justice.
The vilification and dehumanisation of “foreign national offenders” is closely bound up with that of migrants more broadly. Detention and the hostile environment are defended in part because migration is seen as threatening. Much of the discourse and practice around the detention of people deemed “foreign national offenders” is thus rooted in a wider politics of exclusion and dehumanisation. Without this politics, we would not tolerate immigration detention at all. We need a new politics.
Dr Sophie Cartwright is the policy officer at the Jesuit Refugee Service UK and has a PhD in theology. She previously worked with asylum seekers in Glasgow. JRS UK's new report, Detained and Dehumanised: the impact of immigration detention, is now available to read.