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Genealogies of Immigration Detention: Migration Control and the Shifting Boundaries Between the ‘Penal’ and the ‘Preventive’ State

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Abstract

The aim of this article is to explore the ambiguous legal status of immigration detention by discussing the main theoretical perspectives on its nature and the functions it plays in contemporary migration policies. After presenting a typological and genealogical reconstruction of immigration detention, the article contends that it should not be seen as being related either to the politics of ‘exception’ or to the expanding reach of ‘penal’ power in a context of mass migration. Instead, the argument presented here is that immigration detention exhibits the characteristics of preventive measures typically related to the exercise of police powers and that its increased role in migration policies should be read in the wider framework of the shifting boundaries between the ‘penal’ and the ‘preventive’ state in contemporary societies.

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... In contrast to the well-regulated criminal justice system, immigration law provides the police with broad discretionary powers to control and detain foreign nationals through administrative measures. Notwithstanding similarities with prisons, the legal structure of immigration detention differs from that of criminal justice due to deportable foreign nationals' limited rights and protections, and the prevalence of administrative police measures in immigration enforcement (see Campesi, 2020;Dubber, 2018;Napoli, 2011;Velloso, 2022). Preoccupation with the convergence of criminal and immigration law practices, together with "the focus on the state as the singular holder of the sovereignty" (Moffette and Pratt, 2020: 17), involves a risk of overlooking different operational rationalities, legal instruments, and administrative practices in immigration enforcement. ...
... In this article, I discuss different functions of immigration detention as a part of the governance of migration, drawing on my research on the detention and removal system in Finland, and analysis of Finnish immigration policy documents. While I have discussed empirical findings in detail elsewhere, this article places more theoretical focus on police powers in immigration enforcement and administrative police measures as a distinguished form of governance from law and criminal justice (Dubber, 2018;Neocleous, 2021); notwithstanding some important contributions (e.g., Campesi, 2020;Velloso, 2022;Walters, 2002;Weber, 2013), these questions have received rather limited attention in the analysis of immigration detention. In addition to deprivation of liberty in the first place, police measures support removal procedures that continue during detention, as well as other administrative strategies to control deportable people. ...
... The control and prevention of irregular migration have become a key objective for the police and border control agencies due to presumed risks and threats to the social order connected to increasing mobility (Campesi, 2020;de Giorgi, 2010;Weber, 2013). Immigration law provides wide discretionary powers for the police to control suspicious foreign nationals and prevent potential disorder, based on the status of individuals as deportable noncitizens. ...
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Notwithstanding punitive implications, immigration detention as an administrative deprivation of liberty represents a characteristic police measure, targeting deportable noncitizens with limited rights and protections. Drawing on an analysis of the detention system in Finland, I discuss different functions of immigration detention, focusing on police powers in the govern-ance of mobile populations. In Finland, immigration detention is separated from the criminal justice system and delegated to the police, who possess broad powers to impose coercive measures for the enforcement of immigration decisions and social control in the absence of effective judicial supervision. Despite being affiliated with the removal of rejected asylum seekers, immigration detention also is intertwined with crime prevention and control of irregular migration. In addition to deprivation of liberty in the first place, police measures support removal procedures that continue during detention, as well as other administrative strategies to control deportable people and deter unauthorized residency, involving varying degrees of coercion. Though connected with criminal justice and manifestations of penal power in border criminology discussions, immigration detention can arguably be better understood as a coercive police measure, which can be employed alongside other administrative means for immigration enforcement outside of the criminal justice system.
... In general, the police possess broad powers to impose coercive measures also outside the criminal justice system for the protection of public order and security, involving different procedures and modes of governance: punitive juridical measures to deal with criminal offences and preventive administrative measures to intervene in disturbing conduct endangering social order (Dubber, 2018;Napoli, 2011;Neocleous, 2021). Notwithstanding resemblances and similarities, immigration enforcement measures predominantly fall within the preventive measures targeting potential risks for public order and security and represent future-oriented modes of governance, in contrast to the prevalent backward-looking logic of punishment in the criminal justice system (Campesi, 2020;Gundhus and Jansen, 2020). ...
... Compared to the well-regulated criminal justice system with established legal procedures and protections, immigration law provides the police with rather vague legal grounds to impose coercive measures to control mobile foreign populations. In contrast to criminal law's focus on committed past acts, immigration enforcement operates on the temporal horizon of potential acts and risks in the future (Campesi, 2020;Gundhus and Jansen, 2020), whether concerning risks of absconding, an unauthorized residency or return, or criminal activities. Notwithstanding punitive experiences of coercive measures, immigration enforcement as the protection and production of social order ultimately involves a preventive rationale and represents a different mode of governance compared to the criminal justice system (see Dubber, 2018;Neocleous, 2021). ...
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In Finland, security concerns have always prevailed in immigration enforcement, despite the relatively low share of immigrant population. Historically, immigration controls have been a police matter in Finland, involving a strong emphasis on public order and security concerns and sharing similarities with vagrancy laws in the control of mobile poor people. Despite the introduction of a legal framework regulating immigration enforcement since the 1980s, immigration law provides broad discretionary powers for the police to control foreign nationals and impose administrative coercive measures with little judicial supervision. Immigration enforcement measures remain largely separate from the criminal justice system: the immigration authorities possess considerable discretionary powers to remove foreign offenders at low thresholds, depending on the legal status of foreign nationals. The police use considerable efforts for removals, with immigration detention being a routine practice in the control of deportable foreign nationals, including rejected asylum seekers, irregular migrants, and foreign offenders. The Finnish case demonstrates a long history of police powers and administrative coercive measures in the control of mobile populations outside the criminal justice system, pointing to the need for theoretical attention to police powers and the public order and security framework in immigration enforcement in border criminology discussions.
... As the use of administrative detention has increased in Europe over the last 20 years, legal, political and sociological researchers have debated the theoretical foundations and functions of this coercive measure. Though there is no consistent, comprehensive conceptualisation of administrative detention, some scholars have identified at least three possible theoretical perspectives to address the issue (Campesi 2020a;Fernández Bessa 2021). ...
... He has traced detention centres back to the concept of the camp -drawing a parallel with extermination camps -understood as a place where "the norm becomes indistinguishable from the exception", and the exception is understood "not as a special law, but as the suspension of the legal order itself" (Agamben 2003: 13). The camp paradigm has often been used to criticise the flagrant violations of law and fundamental rights that take place in detention centres, but more recent criminological, social and socio-legal perspectives diverge from this approach (Campesi 2020a). ...
Article
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Dating back to Italy’s first comprehensive immigration law in the 1990s, the practice of detaining irregular migrants has served various explicit and implicit purposes, both practical and symbolic. Two decrees passed in 2023, under the far-right government of Giorgia Meloni, were explicitly framed as responses to the increasing number of migrants arriving at the borders. The aim of these decrees was to prolong the detention of asylum seekers and irregular migrants, with the stated aim of increasing returns. However, despite these measures, available data suggests that the capacity of detention centres has not increased significantly, and the rate of returns has remained stable. Against this backdrop, this article seeks to explore the explicit and implicit functions of detention by examining recent reforms and publicly available quantitative data obtained through a request under Italy’s Freedom of Information Act. It suggests that whilst detention serves practical purposes for a minority of migrants, its symbolic role in conveying state sovereignty and strict border control is equally important.
... Consequently, the removal measures for EU citizens include a future-oriented diagnosis of the level of danger of the person beyond actual offences and punishments (Hurri, 2014). In contrast to the criminal justice system adjudicating past acts, immigration enforcement measures involve a preventive rationale in that they target potential future acts that might pose threats to public order and security (Campesi, 2020;Gundhus and Jansen, 2020;Hörnqvist, 2004;Mitsilegas, 2018). As Campesi (2020: 529, 541) highlights in the context of immigration detention, 'it possesses the characteristics of preventive measures typically related to the exercise of police powers' and is justified based on 'the construction of abstract typologies of "dangerous individuals" identified as presenting risks to society'. ...
... Due to the future-orientated rationale targeting potential risks or harms to society, removal orders imposed on seemingly dangerous individuals for the protection of public order and security are essentially preventive measures (Campesi, 2020;Coutts, 2019;Gundhus and Jansen, 2020). In contrast to criminal convictions, preventive measures interfering with the rights of individuals are applied based on their necessity to prevent assumed dangers before the threating act takes place. ...
Article
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Despite being frequently invoked in everyday police work and immigration enforcement to justify coercive measures, public order and security remains an ambiguous legal concept. For EU citizens, the Citizens' Rights Directive stipulates public order and security grounds to provide a higher threshold against removals than criminal convictions alone. However, the removal grounds for EU citizens were founded on even less than criminal convictions in analysis of 100 removal orders for mobile Estonian and Romanian citizens in Finland. Ultimately, the removal orders relied on the assumption of future crimes and invoked a conception of 'dangerous individuals' with criminal tendencies, even based on single minor offences and administrative penal orders without criminal convictions. Notwithstanding various legal meanings, I argue that the required public order and security grounds for the removal of EU citizens corresponded to police conceptions of mobile populations as a potential source of criminality and a threat to social order.
... The security rationale is rooted in the law stating that people with a criminal record or those who seriously threaten public order or other persons can be detained. Thus, this rationale covers simultaneously punitive and preventive dimensions (Campesi, 2020). On the one hand, the priority to detain people with criminal records reflects a punitive logic related to the moral perception of these non-citizens as the most 'undeserving' . ...
... First, it consists of suspecting that someone will abscond to avoid deportation. In this logic, irregular migrants and denied asylum-seekers are regarded as genuinely untrustworthy individuals (Campesi, 2020). This tool aims to ensure the presence of the person concerned for deportation and disciplines those who don't cooperate with their removal (Majcher & De Senarclens, 2014). ...
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This article analyzes the coexisting meanings, interpretations and functions underlying the varying uses of immigration detention in Swiss cantons. The authors argue that cantonal immigration bureaucracies decide on administrative detention according to different and intertwined implementation rationales, revealing varying functions and reasonings which shape its uses in practice. This highlights the significant variation in subnational policies and practices with regards to immigration detention within a single federal country, depending on these rationales and the cantonal contexts. The cantonal discretionary implementation of the same legal norms leads to various cantonal policies, resulting in different numbers and profiles of persons detained.
... Decision-makers' interdependent relationships with these actors vary from one canton to another but directly shape the workload of immigration bureaucracies and the way they use their discretion regarding immigration detention. This implies that, while initially aimed at enforcing removals, cantonal use of immigration detention is also marked by other rationales (see C. Achermann, 2021), such as reducing expenses or fighting criminality, mixing both punitive (sanctioning illegality of stay) and preventive (crime control) logic (Campesi, 2020;Campesi & Fabini, 2019;Rezzonico, 2020). ...
... Their varying types and properties in each canton may lead to different uses of immigration detention. This reliance on other SLBs implies that while they initially aim to enforce removals, immigration detention decisions are also marked by the treatment of other "public problems" and follow additional logics, such as the fight against criminality, confirming its punitive function (Campesi, 2020;Leerkes & Broeders, 2010). ...
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Based on interviews with bureaucrats and judges in several Swiss cantons, this article analyzes how bureaucrats decide to order immigration detention and how the judicial review shapes their decisions. The authors argue that discretionary decision-making regarding immigration detention is structured by the web of relationships in which decision-makers are embedded and affected by the practices of other street-level actors. The varying cantonal configurations result in heterogenous bureaucratic practices that affect the profiles and numbers of persons being detained. In particular, differences in judges’ interpretation of legal principles, as well as in their expectations, strongly affect bureaucratic decisions.
... While the criminal justice system includes preventive rationales alongside its primary post-crime orientation in sanctioning acts committed in the past, the pre-crime logic characterized by 'the temporal perspective to anticipate and forestall that which has not yet occurred and may never do' (Zedner, 2007: 262) prevails in immigration enforcement. In other words, coercive measures such as immigration detention and removals operate in the security framework and aim to prevent potential disorders for society based on estimations of probable actions in the future (see Campesi, 2020;Gundhus and Jansen, 2020). Likewise, entry bans accompanying removal orders aim to prevent unwanted mobility back to Europe by rendering targeted individuals immediately deportable if they are apprehended while returning during the sanctioned period (Könönen, 2022b). ...
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Notwithstanding claims about the emergence of 'crimmigration' systems, immigration law and criminal law entail two different sets of instruments for authorities to control foreign nationals. Drawing on an analysis of removal orders for foreign offenders in Finland, this article demonstrates that significant administrative powers in immigration enforcement are employed largely autonomously from the criminal justice system. Immigration law enables the police and immigration officials to issue removal orders based on fines or penal orders for (suspected) minor offences, without obtaining criminal convictions. In addition to disproportionate administrative sanctions for foreign nationals, removal orders involve a preventive rationale targeting future risks for the society based on the assumed continuation of criminal activities. While criminal courts adjudicate all severe offences, punitive application of immigration law enables authorities to bypass criminal justice procedures and safeguards, resulting in a distinct, administrative punitive system for visiting third-country nationals.
... Even though Italy still has a lower proportion of immigrants per every 1000 inhabitants compared to other European countries, we chose this country as an interesting case study because Italy has experienced a growing influx of immigrants from countries with high migratory pressure only since the 1990s, with the share of non-native students increasing by approximately 67% from 2006 to 2017 (MIUR 2017). During this period, the government adopted restrictive immigration policies with a possible negative effect on the integration of immigrants into the receiving society (Campesi 2020). Such rapid expansion has pressured an underfunded education system, which is adjusting to these new integration challenges. ...
Article
The educational system is a crucial arena for the integration of the children of immigrants. We study the consequences of the presence of students with a migration background on various student outcomes, overall and distinguishing among natives, second- and first-generation children. We focus on Italy, a country that experienced a rapid increase in the presence of children of immigrants in school. First, we analyze not only students’ competencies but also their well-being and social integration. Second, we investigate the joint effects of two dimensions of migrants’ presence in the classroom: immigrant proportion and ethnolinguistic diversity. Third, we develop a design to make exposure to a level of immigrant proportion and ethnolinguistic diversity conditionally random. We use data collected by the National Institute for the Evaluation of the Italian School System on the entire population of students enrolled in the fifth grade in 2014–15. Our findings suggest that the immigrant proportion and ethno-linguistic diversity in the classroom have limited detrimental effects; their minor effects are widely independent of each other and approximately linear. The impact is tiny and appears to be concentrated exclusively on first-generation students. Implications for theoretical debate and educational policies are discussed in relation to the findings.
... For exiles residing in shelters/detention centres, self-isolation and social distancing may have been impossible to enforce and confinement to housing may have led to economic problems (Campesi, 2015a(Campesi, , 2018(Campesi, , 2020. Conversely, in camps in rural settings, economic activity has not stopped in the same way, the remoteness from any other inhabited nucleus and the limitations on mobility led to radical isolation and the impossibility of accessing certain social and welfare resources that migrants could count on (from visits to health centres or commercial areas, to contact with humanitarian or other organizations). ...
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The reception of migrants, refugees and asylum seekers in camps has become a common phenomenon in Europe, discursively linked to the historical ‘crisis’ of mass movements towards the region. Camps and irregularity are two key issues in understanding the special impact that the COVID‐19 pandemic has had on migrants and refugees. This article explores connections between the ‘campization’ of migrant and refugee reception and the current debates for and against migrant regularization in response to the COVID‐19 pandemic in Southern Europe (Spain and Italy). The analysis uses qualitative methodology based on multi‐site ethnographic fieldwork (pre‐COVID‐19 pandemic); informal remote interviews with migrants and refugees; and analysis of political, media and legislative discourses.
... In addition to securing the removal of foreign offenders, immigration detention is intertwined with the objective of crime prevention: immigration law provides an administrative instrument to sanction noncitizens outside of criminal proceedings (Campesi, 2020). In fact, crime prevention was an explicit grounds for immigration detention in the Finnish Alien Act before the legislative change in 2015: according to the past formulation, a noncitizen could be detained if "there are reasonable grounds to believe that he/she will commit an offence in Finland." ...
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This article discusses how administrative practices shape immigration detention policies, addressing both administrative discretion in detention orders and their judicial supervision. Due to vaguely formulated legal criteria and ineffective ex‐post judicial supervision, the authorities have considerable discretionary powers in ordering detentions for noncompliant and criminalized noncitizens. Instead of being a measure of last resort, immigration detention is used in a routine manner, with little individual assessment, for the enforcement of removals and the prevention of irregular migration, as well as extensively for crime prevention. The findings demonstrate the role of the police as the main actor in the detention system in Finland, with significant implications for the formation of detention policies.
... Studies of criminological theories have detailed how the writings of Enrico Ferri and Cesare Lombroso contain significant anticipatory and preventive features. Yet literature on criminal justice practices traces the enactment of pre-emptive policies to the neoliberal era, sometimes specifically to the late 1990 s onwards (Campesi, 2020). In studying the crime policy forums of the UN and Council of Europe, this article intercedes between studies of criminological theory and studies of national criminal justice systems. ...
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Using a combination of documentary and archival research methods, this article explores the development of Social Defence criminology across the 19th and 20th centuries—highlighting the influence the ‘new’ Social Defence movement had upon the United Nations' and Council of Europe's international crime policy programmes. By exploring the integration of Social Defence within these international programmes, the article is able to challenge several longstanding arguments in Criminology which associate pre-crime and the securitization of criminal justice with the neoliberal era. Social Defence scholars influenced International Organizations to research and disseminate anticipatory mechanisms to identify and reform potential deviants decades earlier than prominent theses suggest. These measures were steeped in the language of security and were oriented towards the prevention of future juvenile crime. The article argues for a reweighing of the influence of Social Defence criminology and against accounts which draw significant divisions between ‘penal welfarism’ and ‘neoliberal penality’.
... In fact, the new CPR are the same structures as the old CIE with a mere change of name. Probably, their use as instruments of 'preventive' police power (Campesi, 2020) has increased since the last 'Salvini decree' due to the obstacles raised against regular human mobility 24 . 24 The Italian government has recently undermined the System of Protection for Asylum seekers and Refugees (SPRAR), which was considered as a best practice in migrant integration policies. ...
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Detention is a pressing empirical, conceptual, and political issue. Detained populations, detention facilities, and industries have expanded globally. Detention is also a fundamentally geographical topic, yet largely overlooked by geographers. We argue that detention be conceptualized as a series of geographical processes. Operating through these processes are contradictory sets of temporal and spatial logics that structure the seemingly paradoxical geographies underpinning detention. These logics include containment and mobility, bordering and exclusion. We trace these logics through an emergent literature, synthesizing and analyzing important geographic themes in the field. We identify contributions by and new avenues of inquiry for geographers.
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Although criminologists in the US and Europe continue to explore issues of immigration, race, and ethnicity in the context of crime, they have yet to examine the detention of asylum seekers. Still, this is a social phenomenon that requires serious consideration since in many instances such policies and practices violate international standards for the protection of refugees. This work takes a critical look at the detention of persons fleeing persecution by situating it an expanding culture of control stoked by the criminology of the other. The article offers evidence of a steady increase in the reliance on detention of asylum seekers in the US, UK, France, Germany, and Italy. Indications of a conservative shift in criminological thought affecting crime—and asylum—policy are addressed alongside concerns for human rights in a post-September 11 world.
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Cambridge Core - Criminal Law - Criminology and the Criminal Justice System - by Cyrille Fijnaut
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Immigration detention is a growing threat to the well-being of migrants worldwide. While the use of this tool continues to increase, there is a growing consensus by governments on the need to pursue alternative programs. This paper examines the nature of these apparently contradictory developments and the reasons for tension in this area of migration policy. Drawing from research conducted by the International Detention Coalition and La Trobe University, this paper describes the Community Assessment and Placement (CAP) model, which seeks to prevent unnecessary detention, while allowing governments to meet the rationale offered for detention. It argues that the global trends of growth in detention and an increased emphasis on alternatives reflect competing political, policy and operational objectives. For example, governments wish to ensure compliance with deportation orders; alleviate political pressures regarding the harms associated with detention; and demonstrate control of territorial borders. Understanding the multiple rationales that shape this area of migration policy can help make sense of contradictory policy developments and identify the most effective ways to safeguard those who might be subject to detention.
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From Mexico to the Bahamas, Mauritania to Lebanon, Turkey to Saudi Arabia, South Africa to Indonesia, Malaysia to Thailand, immigration-related detention has become an established policy apparatus that counts on dedicated facilities and burgeoning institutional bureaucracies. Until relatively recently, however, detention appears to have been largely an ad hoc tool, employed mainly by wealthy states in exigent circumstances. This paper uses concepts from diffusion theory to detail the history of key policy events in several important immigration destination countries that led to the spreading of detention practices during the last 30 years and assesses some of the motives that appear to have encouraged this phenomenon. The paper also endeavors to place the United States at the center of this story because its policy decisions appear to have played an important role in encouraging the process of policy innovation, imitation, and imposition that has helped give rise to today's global immigration detention phenomenon. Nevertheless, many US offshore practices have not received nearly the same attention as those of other important destination countries. More broadly, in telling this story, this paper seeks to flesh out some of the larger policy implications of the externalization of immigration control regimes. Just as offshore interdiction and detention schemes raise important questions about custody, accountability, and sovereignty, they should also spur questions over where responsibility for the wellbeing of migrants begins and ends.
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In this article, I examine the changing nature of punishment under conditions of mass mobility. Drawing on research conducted in immigration removal centres in the UK, I will show how porous boundaries between administrative penalties and criminal penalties have made the two systems co-constitutive and, in so doing, have drawn into question the liberal foundations of punishment. As foreigners face additional, administrative burdens and are subject to processes of differentiation and exclusion simply by virtue of their citizenship, I suggest, basic values of due process, fairness and equality of treatment and outcome, are drawn into question. As a consequence, justice itself is transformed.
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Pour préciser ce que j'entends par « gouvernement humanitaire » et pourquoi cette notion m'est nécessaire pour pouvoir aborder la question de l'action politique au sein des espaces humanitaires, il me faut d'abord décrire l'intervention humanitaire dans les différents contextes qui l'instituent.Monde flexible et dispositif multilocalisé, déploiements matériels et humains « à la demande » et espaces des camps. C'est dans l'enchevêtrement de différentes « instances » que prend forme le gouvernement humanitaire. L'ensemble du dispositif n'a pas de véritable coordination mondiale organisée, encore que celle-ci soit imaginable, voire déjà en partie imaginée : certains organismes inter-États ou onusiens, mais aussi quelques très grandes ONG , ont des velléités coordinatrices planétaires. Le HCR joue, dans ce secteur, un rôle dominant sur le plan politique et économique. Dans le même sens, mais au niveau européen, ECHO occupe une place centrale dans le financement et donc le pilotage de l'intervention des ONG des pays européens, en particulier de la vaste nébuleuse des petites ONG sans indépendance financière. Enfin des ONG de surface internationale, telles que MS, ACF, CARE ou IRC, tentent de coordonner l'intervention sur le terrain de leurs différentes sections nationales, plus rarement de définir des campagnes ou des positions communes à l'échelle internationale. LIRE LE TEXTE : http://terra.rezo.net/article569.html
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Border procedures have so far received little attention in the legal literature dealing with European asylum law. Literature on immigration detention in Europe has also neglected the use of detention in border procedures. This is remarkable because one of the reasons that Member States resort to border procedures can be traced back to the centrality of territorial presence within the modern State for the enjoyment of rights. The triangular relationship between an application for international protection, refusal of entry, and a deprivation of liberty has remained imprecise. This indeterminacy has had important repercussions for the way in which the right to liberty has been protected at the borders of Europe. However, the way in which the Recast Asylum Procedures Directive circumscribes Member States’ use of this procedure is unprecedented. This article uses the Dutch implementation of the Asylum Procedures Directive in order to unpack the above-mentioned triangular relationship between an application for international protection, refusal of entry, and a deprivation of liberty. It will show that European Union regulation in this area is distinctive because it entails recognition of the fact that, when it comes to the enforcement of migration control, individual rights are at stake.
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This article critically assesses the amended European Union asylum detention framework. It traces the tension reflected in the regime between protection provision and administrative imperatives, such as migration management. The research argues that the amended legislation closely frames asylum detention. A coherent regional understanding of "alternatives to asylum detention" also emerges from the legal framework. These elements have the potential to advance protection of forced migrants at global and regional levels. However, European Union asylum law also carries within it the risk of undermining protection. The research explores in this respect the broadly phrased detention grounds and advances an interpretation on the basis of Member States' international and regional (Council of Europe) legal obligations.
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Dyzenhaus deals with the urgent question of how governments should respond to emergencies and terrorism by exploring the idea that there is an unwritten constitution of law, exemplified in the common law constitution of Commonwealth countries. He looks mainly to cases decided in the United Kingdom, Australia and Canada to demonstrate that even in the absence of an entrenched bill of rights, the law provides a moral resource that can inform a rule-of-law project capable of responding to situations which place legal and political order under great stress. Those cases are discussed against a backdrop of recent writing and judicial decisions in the United States of America in order to show that the issues are not confined to the Commonwealth. The author argues that the rule-of-law project is one in which judges play an important role, but which also requires the participation of the legislature and the executive.
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We live in an ever-fragmenting society, in which distinctions between culture and nature, biology and politics, law and transgression, mobility and immobility, reality and representation, seem to be disappearing. This book demonstrates the hidden logic beneath this process, which is also the logic of 'the camp'. Social theory has traditionally interpreted the camp as an anomaly, as an exceptional site situated on the margins of society, aiming to neutralize its 'failed citizens' and 'enemies'. However, in contemporary society, 'the camp' has now become the rule and consequently a new interrogation of its logic is necessary. In this exceptional volume, the authors explore the paradox of the camp, as representing both an old fear of enclosure and a new dream of belonging. They illustrate their arguments by drawing on contemporary sites of exemption - such as refugee camps, rape camps and favelas - as well as sites of self-exemption including gated communities, party tourism and celebrity cultures. © 2005 Bülent Diken and Carsten Bagge Laustsen. All rights reserved.
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In the face of the world's disorders, moral concerns have provided a powerful ground for developing international as well as local policies. Didier Fassin draws on case materials from France, South Africa, Venezuela, and Palestine to explore the meaning of humanitarianism in the contexts of immigration and asylum, disease and poverty, disaster and war. He traces and analyzes recent shifts in moral and political discourse and practices-what he terms "humanitarian reason"- and shows in vivid examples how humanitarianism is confronted by inequality and violence. Deftly illuminating the tensions and contradictions in humanitarian government, he reveals the ambiguities confronting states and organizations as they struggle to deal with the intolerable. His critique of humanitarian reason, respectful of the participants involved but lucid about the stakes they disregard, offers theoretical and empirical foundations for a political and moral anthropology.
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Courts and commentators have long assumed, without significant analysis, that immigration detention is a form of civil confinement merely because the immigration proceedings of which it is part are deemed civil. This Article challenges that deeply held assumption. It harnesses the U.S. Supreme Court's instruction that detention's civil or penal character turns on legislative intent and, buttressed by theoretical understandings of punishment, contends that immigration detention - apart from the deportation that often results - itself constitutes penal incarceration. In particular, legislation enacted over roughly fifteen years in the 1980s and 1990s indicates a palpable desire to wield immigration detention as a tool in fighting the nation's burgeoning war on drugs by penalizing and stigmatizing criminal behavior. Indeed, the modern immigration detention system has accomplished the U.S. Congress's punitive goal: Immigration detention is a severely unpleasant experience and immigration detainees are viewed as dangerous. In order to remain true to the Court's guidance to draw formal boundaries between civil and penal confinement, the current immigration detention regime should be conceptualized as punishment. This Article contends that the constitutional limitations imposed by criminal procedure are ill-equipped to address immigration detention. Instead, policymakers should learn from the nations failed experience with mass penal incarceration - and step back from immigration detention's punitive origins to create a truly civil immigration detention system.
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Just a decade ago security had little claim to criminological attention. Today a combination of disciplinary paradigm shifts, policy changes, and world political events have pushed security to the forefront of the criminological agenda. Distinctions between public safety and private protection, policing and security services, national and international security are being eroded. Post-9/11 the pursuit of security has been hotly debated not least because countering terrorism raises the stakes and licenses extraordinary measures. Security has become a central plank of public policy, a topical political issue, and lucrative focus of private venture but it is not without costs, problems, and paradoxes. As security governs our lives, governing security become a priority. This book provides a brief, authoritative introduction to the history of security from Hobbes to the present day and a timely guide to contemporary security politics and dilemmas. It argues that the pursuit of security poses a significant challenge for criminal justice practices and values. It defends security as public good and suggests a framework of principles by which it might better be governed. Engaging with major academic debates in criminology, law, international relations, politics, and sociology, this book stands at the vanguard of interdisciplinary writing on security.
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Current criminological interest in the boundaries of penality has done much to shed light on the definition and meaning of punishment. Even the central case of punishment, its aims and purposes are contested, so it should not surprise that the boundaries are also disputed. As states seek to evade the criminal process and its protections by resort to civil and administrative measures, the line between formal and informal criminal penalties blurs. In Europe, the courts have sought to reassert the protections of the criminal process by looking behind the labels to insist on substance over form in deciding what is a punishment. In so doing, they have re-affirmed the boundaries of penality as a vital means of providing protection against arbitrary government. Examining these turf wars reveals a constitutional struggle over the very authority of the state to punish.
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The article explores the relationship between immigration detention and criminal justice by presenting the results of an ethnographic research that was carried out inside one of the main Italian pre-removal detention facilities. Challenging the idea that immigration detention centres are to be considered as legal black holes where migrants are reduced to ‘bare life’ and subjected to a form of absolute power, this article suggests that detained migrants possess an extraordinary ability to resist and undermine the deportation machine, reproducing a condition that, reversing Nicolas De Genova’s formula, I would define as of their ‘undeportability’. The article explores the microphysics of power relationships shaping detention conditions inside a pre-removal centre showing how in the clash between police attempting to deport migrants and their opposition to deportation, immigration detention turns into a de-facto punishment. While the overlapping of administrative and punitive functions under the framework of immigration law and policies has been extensively analysed, this research illustrates how it is produced in practice suggesting that the evolution of immigration detention into a deterrence tool is to be considered as the outcome of the failure of the Italian deportation machine rather than a conscious policy choice. Finally, this article provides an opportunity to explore further the relationship between migration control and what Michel Agier has defined as humanitarian government, showing the many paradoxes and contradictions incurred by humanitarian agencies when they are called upon to manage custodial facilities such as immigration detention centres.
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From Mexico to the Bahamas, Mauritania to Lebanon, Turkey to Saudi Arabia, South Africa to Indonesia, Malaysia to Thailand, immigration-related detention has become an established policy apparatus that counts on dedicated facilities and burgeoning institutional bureaucracies. Until relatively recently, however, detention appears to have been largely an ad hoc tool, employed mainly by wealthy states in exigent circumstances. This paper uses concepts from diffusion theory to detail the history of key policy events in several important immigration destination countries that led to the spreading of detention practices during the last 30 years and assesses some of the motives that appear to have encouraged this phenomenon. The paper also endeavors to place the United States at the center of this story because its policy decisions appear to have played an important role in encouraging the process of policy innovation, imitation, and imposition that has helped give rise to today’s global immigration detention phenomenon. Nevertheless, many US offshore practices have not received nearly the same attention as those of other important destination countries. More broadly, in telling this story, this paper seeks to flesh out some of the larger policy implications of the externalization of immigration control regimes. Just as offshore interdiction and detention schemes raise important questions about custody, accountability, and sovereignty, they should also spur questions over where responsibility for the wellbeing of migrants begins and ends.
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"A truly excellent and moving book ...The story of the concentration camps for Japanese has often been told, but usually with an emphasis on the silver lining...Michi Weglyn concentrates instead on the other side of the picture. Years of Infamy is hard hitting but fair and balanced. It is a terrible story of administrative callousness and bungling, untold damage to the human soul, confusion, and terror."-Edwin O. Reischauer, former U.S. Ambassador to Japan
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This article elaborates a conceptual framework for assessing the character and effectiveness of immigration policies. It argues that, to a considerable extent, the public and academic controversy concerning this issue is spurious because of fuzzy definitions of policy effectiveness, stemming from confusion between (1) policy discourses, (2) policies on paper, (3) policy implementation, and (4) policy impacts. The article distinguishes three policy gaps: the discrepancy between public discourses and policies on paper (discursive gap); the disparity between policies on paper and implemented policies (implementation gap); and the extent to which implemented policies affect migration (efficacy gap). Although implemented policies seem to be the correct yardstick to assess policy effectiveness, in practice the (generally more pronounced) discourses are often used as a benchmark. This can lead to an overestimation of policy failure. Existing empirical studies suggest that policies significantly affect the targeted migration flows, but they crucially fail to assess the relative importance of policies in comparison to other migration determinants, including non-migration policies, as well as the hypothetical occurrence of unintended categorical, spatial, inter-temporal, and reverse flow “substitution” effects. Evidence on such effects is still scarce, showing the need for more empirically informed insights about the short- and long-term effects of migration policies.
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Humanitarianism rivals security in its ability to legitimize emergency measures, and has also proven to be as ambiguous and open to abuse. In this article, humanitarianism is reconceptualized as a sector of securitization, like state and societal securitization, meaning that it is a structured field of practice that draws on existing discourses and institutions to enable the implementation of emergency measures. This reconceptualization contributes to the theory of securitization by expanding its applicability beyond states and societies to humans as referent objects, but also by challenging the Copenhagen School’s conceptualization of normality/exceptionality at the domestic and international levels. Drawing on the humanitarian securitization of the 2004 Indian Ocean tsunami, the article demonstrates how the structured security field of humanitarianism privileges particular actors in speaking to human insecurity, and how the humanitarian discourse reifies and reinforces a monolithic form of human identity. The article draws attention to the process of representing developments as humanitarian emergencies and uses the framework of securitization to critically examine the discourses, practices and agents of humanitarianism.
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Immigration detention is a growing threat to the well-being of migrants worldwide. While the use of this tool continues to increase, there is a growing consensus by governments on the need to pursue alternative programs. This paper examines the nature of these apparently contradictory developments and the reasons for tension in this area of migration policy. Drawing from research conducted by the International Detention Coalition and La Trobe University, this paper describes the Community Assessment and Placement (CAP) model, which seeks to prevent unnecessary detention, while allowing governments to meet the rationale offered for detention. It argues that the global trends of growth in detention and an increased emphasis on alternatives reflect competing political, policy and operational objectives. For example, governments wish to ensure compliance with deportation orders; alleviate political pressures regarding the harms associated with detention; and demonstrate control of territorial borders. Understanding the multiple rationales that shape this area of migration policy can help make sense of contradictory policy developments and identify the most effective ways to safeguard those who might be subject to detention.
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In this co-authored editorial introduction, Evelyne Massa and I provide a context for our special issue by outlining the major approaches and issues related to immigration detention in liberal, democratic states. We are concerned that there is no commonly accepted definition of detention, and so we endeavor to provide one here. Beyond the need for greater conceptual clarity, we suggest that a pressing question is why immigration detention is continuously expanding despite mounting evidence that the practice harms people, does not deter irregular immigrants, and fails to ensure more efficient and effective immigration and asylum determination systems. We introduce the major themes from each contribution and explain how they both address this question and initiate new ones. Collectively, these papers demonstrate that immigration detention is embedded in, and essential for, wider immigration and penal apparatuses; yet, it also operates by its own logics, which in turn shape population boundaries in new ways both within and beyond the sovereign state. We conclude that immigration detention warrants special critical attention and a more robust research agenda.