Immigration Detention: Are Alternatives to Detention Alternatives at All?

GCM Policy Brief Series No. 13/ Feb 2021

Immigration detention is a widespread administrative procedure that results in the deprivation of migrants’ liberty. Frequently, individuals are incarcerated in confined facilities in conditions often resembling those of criminal prisons, if not in prisons themselves. Immigration detention can be exercised for a variety of reasons, usually left to the discretion of public authorities and border police. These include: whilst awaiting the execution of removal orders; to establish someone’s identity upon arrival; to prevent absconding whilst an immigration or asylum claim is being processed; when non-nationals lack any immigration documents or overstay their visa. This means that “asylum-seekers, children, victims of trafficking and stateless persons [who] are recognised as vulnerable groups under international law, and [are] entitled to special protection” can also end up being detained: individuals who have experienced traumas and abuses can be deprived of their liberty, possibly for an indefinite time or multiple times during the processing of their immigration case, and forced into degrading conditions that are likely to further exacerbate their mental and physical strain, with long-lasting effects. As highlighted by Dr. Cartwright, for many who had migrated to find refuge, being held in detention in the destination country felt like being tortured once more.

The Universal Declaration of Human Rights recognises the inherent right of all people to life, freedom and security (Art. 3) as well as a right to freedom from arbitrary arrest, detention and exile (Art. 9). The International Covenant on Civil and Political Rights further reinstates the right of every human being to liberty and security, prohibiting arbitrary arrest or detention (Art. 9). This same article, however, allows for the deprivation of someone’s liberty when in line with specific grounds established by the national legislation, opening the doors to a legitimate use of detention on migrants: as long as it is correctly executed by states, i.e. in line with procedural guarantees, immigration detention is justified under international law. In other words, “[d]etention […] is not per se arbitrary, but must be justified as reasonable, necessary and proportionate in the light of individual circumstances and reassessed as it extends in time.”

In line with the revised Deliberation no. 5 on the deprivation of liberty of migrants issued by the Working Group on Arbitrary Detention, Objective 13 of the 2018 Global Compact for Safe, Orderly and Regular Migration (henceforth the Global Compact) suggests that immigration detention should be used “only as a measure of last resort”, i.e. only when strictly necessary, favouring the application of alternatives to custody whenever possible instead. In practice, this means that states should envision in their national legislation a series of different measures to which to resort, prior to deciding to enforce immigration detention. Recurring to immigration detention should thus be determined on a case-by-case basis and as part of an individual’s procedure. As such, the decision should be clearly justified, including by demonstrating why other measures are not applicable in the given circumstance. This is particularly of paramount importance in the case of asylum seekers, to ensure that their cases have been thoroughly assessed and all avenues exhausted before resorting to the use of immigration detention.

Whilst there is no evidence of the effectiveness of the use of immigration detention in reducing undocumented immigration and there is evidence instead of its counterproductivity for case resolution, removal and immigrants’ integration as well as of it having a negative physical and mental health impact on those who experience it, many states are adopting immigration detention as a first strategy to manage immigrants’ presence on their territories and deter more to come. A 2020 position paper of the Red Cross, for instance, suggests that “[c]urrently, the implementation of EU migration management strategies is standardising the use of detention at borders. Rather than a measure of last resort, detention is increasingly used as a first response in border procedures and the “hotspot approach”, and as a sanction for secondary movements.” As a result, instead of upholding the duty to protect and fulfil human rights, migration governance is increasingly eroding them.

Not only among European Member States, but across the globe, “detention has become an established modus operandi that counts on dedicated facilities and burgeoning institutional bureaucracies.” In particular, over the past 20 years the use of immigration detention has increased significantly across the world, in line with a rise of the politicisation of immigration and a growing public discourse centred around the idea of the need for the securitisation of borders.

The use of immigration detention is thus often “justified on the basis of state sovereignty and the right of the state to control its borders and safeguard its citizens [… and it can] have political appeal as part of a state’s immigration policy that reflects a “tough” approach to migration control.”

Whilst exact numbers of people in immigration detention are difficult to collect, according to the Global Detention Project, there are currently 503 detention centres in use worldwide, the United States by far the largest retainer (148), followed by Mexico (51), Switzerland (34) and Libya (22).

The increased use of immigration detention as a migration management solution has also led to a growing involvement of the private sector in running specialised facilities, tying up lucrative business opportunities with the definition of public policies. In a 2017 article, for example, Skodo highlighted that in the United States, “there has been a congressional mandate to fill 34,000 immigration detention beds each night. More than half of these beds are placed in privately run detention facilities, run by companies such as CoreCivic (formerly the Corrections Corporation of America), who lobbied for the passing of this mandate.” Already in 2012, Nyberg Sørensen and Gammeltoft-Hansen were denouncing that

“the pervasiveness of neoliberal governance has resulted in the outsourcing and privatisation to NGOs and private contractors of everything from guest worker schemes to the running of asylum centres and the carrying out of forced deportations. […] Last but not least, the use of private security companies, contractors and NGOs to carry out anything from border security to running asylum [or detention] centres not only significantly blurs the line between public and private but also raises a number of questions as to the impact of the migration industry on government policies through knowledge, standard-setting, lobbying and lock-in effects.”

Not only governments have been fuelling the growth of migration as an industry per se, but the increased involvement of private actors in the management of processes and facilities has negatively influenced the reshaping of migration management, as we witness today.

You may read and download the full PDF version of the policy brief here: GCM Objective 13 Policy Brief