Legal Status, Vulnerability, and Criminalization

A recurrent theme in this volume is how immigration control takes on the language and, in many respects, the spirit of crime control. Such a view, as Dario Melossi points out, overlooks the fact that ‘the connection to be established is between deviant behaviour and the condition of lack of documents, not some kind of “personal quality” of undocumented foreigners’. A number of authors argue that the protections of criminal process would improve the legal status of migrants (see in particular the chapters by Barker, Dauvergne, Stumpf, and Zedner, Chapters 13, 4, 3, and 2 respectively in this volume). Lucia Zedner suggests that the centrality of citizenship to the criminal law and punishment ‘poses intractable problems for those whose citizenship status is absent’. It is possible, she says, to posit a separate and less favourable criminal law for ‘enemies’. Her chapter highlights how, in criminal law, an offence is a wrong against the polity as a whole, not just against the individual victim; this perspective is predicated on certain common values and a shared identity and sense of belonging, to which non-citizens can lay lesser claim.

Zedner also proposes that the core principles ofcriminal law are often compromised by immigration offences, many of which fail to satisfy the basic requirements of Mill’s (1859) harm principle. The incomprehension of detainees of what they may have done to deserve what they see as a severe punishment is a common finding. The following quotations are from detainees in the United Kingdom and Australia respectively:

What sort of law is this? You get 3 month sentence and end up in prison for 3 years.

[I] ran from a war situation and now in a prison. [I] feel confused and disappointed.[1]

It was detention ... it was like a prison, only there were men, women and children, all together ... instead of being criminals, many of the people in there were the victims ... we should not have been there. (Zurek 2004: 37)

Immigration detention is not meant to be punitive. Yet, as Bosworth points out in Chapter 8 of this volume, detainees repeatedly describe it in such terms, finding it equivalent to or worse than imprisonment, with its indefinite nature causing particular anxiety. The impact on detainees with mental health problems can be particularly severe:

My mother was murdered ... I find a confined environment is stressful. ... I was in prison back in Africa due to my student activities. I feel morbid, depressed . When I get attacks and hallucinations, I can’t make out what is real and what isn’t. The more I keep it in, the worse it gets. I suffer from violent panic attacks ... You become paranoid that the authorities will harm me ... I sometimes feel that I want to harm myself. ... Sometimes I don’t have anyone to speak to ... I can’t control my emotions.[2]

The man quoted above, a Kenyan national, was detained for nearly a year following a one-month prison sentence. During that time he was assessed as mentally ill, suffering post-traumatic stress disorder. A psychiatrist and psychologist made repeated recommendations to the UKBA that he should be released to engage with treatment in the community. At one point the psychiatrist wrote that ‘he now presents a real risk to his life. Because of his previous traumatic experiences in custody the detention appears particularly harmful to him’ (HMIP and ICIBI 2012: 27). Perversely, a letter from UKBA officials to his solicitor used the fact that he had been seen by mental health professionals as a justification for further detention:

With regard to the Doctor’s opinions stating your client is not fit for detention and is suicidal . has been seeing [a] Psychotherapist and. . a consultant psychiatrist on a regular basis.[3] [4]

A subsequent detention review made no reference at all to the views of the psychiatrist and psychotherapist, and the man was eventually deported. His case is particularly disturbing in the context of four recent judgments against the UKBA establishing that mentally ill people were subject to inhuman and degrading treatment under Article 3 of the European Convention on Human Rights and unlawfully detained.11 There was little evidence in these cases of the effectiveness of the systems that are supposed to safeguard such vulnerable detainees.

In Chapter 3 of this volume, Juliet Stumpf illustrates the dangers of the lack of due process and the breakdown of protection that comes with placing immigration and criminal law on the same continuum. ‘The process’, she argues, ‘is punishment’. Although her work is conducted in the United States, a similar view emerges in the United Kingdom, where, for example, detainees should receive monthly updates on their cases. Usually, the UKBA complies with this regulation. However, ‘updates’ routinely provide no new information at all, even though the reasonable assumption (both legal and ethical) in each case of detention should be that officials have actively been working to progress cases. Rather, as one detainee reported to HMIP about his monthly update, ‘It repeats the same information, that removal is imminent. They’ve said that for the last two years’.[5] Worse, the ‘updates’ may provide information that cannot be understood by detainees, even those who speak English:

I read them because I can understand them but when they start using sections of immigration acts I get lost. They are not in layman’s terms. They can be detrimental to my case but I don’t understand them. (HMIP and ICIBI 2012: 24)

The punitive nature of the process can also be discerned in how the UKBA sometimes deals with ‘non compliance’.[6] If a detainee is thought to be noncompliant with the re-documentation process, a stand-off can develop, where detention is extended, seemingly in the hope that the detainee will relent and provide correct information. In fact, section 35 of the Asylum and Immigration (Treatment of Claimants) Act 2004 allows prosecution of those who fail to comply with the re-documentation process, and a punishment of up to two years in prison and/or a fine. Yet, in the financial year 2009/2010, only six people were charged in England and Wales, all of whom were convicted and imprisoned.[7] In the following year (2010/2011) only eight were found guilty.[8] Prosecution places the burden of proof on the UKBA, which has to prove beyond reasonable doubt that the detainee is not cooperating, and allows disputed cases to be scrutinized by an independent judge. The fact that one-third of appeals against deportation by ex foreign national prisoners are won, mostly on human rights grounds (Vine 2011), suggests that the reticence of the UKBA to take ‘non-compliant’ detainees to court may be due in large part to a lack of confidence in the strength of decision making.

  • [1] Unpublished quote from research conducted for HMIP and Independent Chief Inspector ofBorders and Immigration (ICIBI) (2012).
  • [2] Extended version of quotation summarized in HMIP and ICIBI 2012: 27.
  • [3] Unpublished quotation from HMIP and ICIBI 2012 relating to case study on pp 27—28.
  • [4] See HMIP and ICIBI 2012: 13—14, for links to all cases.
  • [5] Unpublished quotation taken from research done in the course of the thematic review ofdetention casework undertaken by HMIP and ICIBI (2012).
  • [6] Wilsher (2012: 350) notes the difficulty of defining non-compliance: ‘The very concept of“non-compliance” is fraught with uncertainty. There have been successful challenges to such executiveassessments in the United States and the United Kingdom. ... Criminal prosecution is preferablebecause it puts the burden on governments to justify their non-compliance claims before independentforensic examination.’
  • [7] UKBA response to a freedom of information request from the Northern Refugee Centre dated3 July 2010. Bail for Immigration Detainee’s Travel Document Project’s ‘Briefing on Co-operation &Removability’, February 2012.
  • [8] Ministry of Justice, Justice Statistics Analytical Services response to a freedom of informationrequest from Bail for Immigration Detainees (BID) November 2011. BID Travel Document Project’s‘Briefing on Co-operation & Removability’, February 2012.
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