Discipline and Punish? Analysis of the Purposes of Immigration Detention in Europe

Abstract

Pre-removal detention is usually considered an administrative measure aimed at the facilitation of the removal of irregular migrants by preventing them from absconding during removal proceedings. The administrative nature of immigration detention implies that persons subject to this measure do not have access to the fair trial guarantees that criminal detainees are entitled to. However, the assessment of pre-removal detention under European Union and Swiss legislation demonstrates the penal nature of such detention despite its formal administrative classification. The penal nature of immigration detention is most easily revealed by the explicit deterrent—if not punitive—function it is supposed to fulfill in order to force foreigners to cooperate in their own removal procedure. Moreover, this penal nature may also be deducted from the more implicit purpose of immigration detention to punish irregular migrants and asylum seekers for criminal offences. The discrepancy between the administrative label of immigration detention and its punitive nature should be remedied. Arguably, the use of pre-removal detention should be limited to a truly administrative purpose, i.e. for very short periods of time allowing the state to prevent concrete risks of absconding once removal is about to be enforced. Alternatively, if the existing legal framework fails to prevent the use of immigration detention according to disciplinary or punitive functions, immigration detainees should be afforded guarantees comparable to those applied in criminal proceedings.

Bureaucracies Under Judicial Control? Relational Discretion in the Implementation of Immigration Detention in Swiss Cantons

“…Immigration detention is an instrument of the deportation regime (De Genova & Peutz, 2010) that formally aims to hold people who have received a removal decision until their deportation can be executed and to prevent them from absconding (Bosworth & Turnbull, 2015). Immigration detention is not formally a punishment, but the important body of literature on immigration detention has shown that, beyond its formal function (facilitating deportations), this coercive measure fulfills deterrent, disciplinary, and punitive functions (Leerkes & Broeders, 2010;Majcher & De Senarclens, 2014;Rezzonico, 2020). Thus, immigration detention also shows characteristics of preventive measures, pointing to "the shifting boundaries between the 'penal' and the 'preventive state'" (Campesi, 2020, p. 16).…”

Legitimising exclusion through criminalisation: an ethnography of immigration detention in Switzerland

“…Surprised by my question, the staff member in charge of the immigration detention section answered that detention should not be too comfortable but should rather be demoralising or backbreaking (zermürbend in German) in order for detainees to accept and comply with their removal. This answer reflects the idea that besides its official aim, detention is also meant to serve an informal function of deterrence (Leerkes and Broeders 2013), as well as a disciplinary function of convincing detainees to comply with orders (Campesi 2015a; Majcher and de Senarclens 2015). As we will see in the next section, transforming detainees into docile subjects is one of the main purposes of the carceral institution.…”

“…Immigration detention is mainly understood and rationalised as an instrument of migration control (Majcher and de Senarclens 2015), forming part of a larger "arsenal" of measures for controlling migration (Bloch and Schuster 2005: 508). In this thesis, I understand migration control as composed of a variety of policies, measures, practices and discourses that operate through the dynamic of inclusion and exclusion.…”

“…According to Leerkes and Broeders (2013), immigration detention also serves functions of deterrence of illegal residence, incapacitation from committing crimes or disturbing public order, and managing popular anxiety by symbolically asserting state control over irregular migration. It has also ben argued that detention is "a disciplinary and punitive instrument designed to shape the conduct of a category of migrants in terms of both immigration and crime control objectives" (Majcher and de Senarclens 2015) and forcing them to collaborate with deportation (Campesi 2015).…”

“…In accordance with the proposition of Federal Councillor Christoph Blocher of the Swiss People's Party, this new law significantly tightened the regulations on administrative detention. It did so by extending the maximum length of this form of detention to 24 months, and by introducing new grounds for detention based on criminal conviction (Majcher and de Senarclens 2015), as well as defining a new form of short-term administrative detention -up to three days -called 'temporary detention'. In addition, Blocher succeeded in creating a further type of detention that would allow the confinement of those foreigners whose removal was unenforceable due to their uncooperative behaviour.…”