III IMPRISONMENT

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Can Immigration Detention Centres be Legitimate? Understanding Confinement in a Global World

Mary Bosworth1

Does it really do any justice really, being here? (Pause). I’d like to say that detention maybe eases society of a bit of cost, but then I think there’s more people that shouldn’t be in this country that are on the outside than there are detained ... I think that it just comes down to how much people that shouldn’t be in this country cost the country. I think that’s the purpose. I could see why foreign nationals should be locked up if they’ve done a crime, and sent back to their country. But as for the poor person who comes over to make his, you know, to try and make his life better or to get educated, I don’t think it does a great deal for the country, detaining people really. (Alana, DCO, TH)[1] [2]

Introduction

Almost 20 years ago Richard Sparks (1994) asked ‘Can prisons be legitimate?’ At that time prisons in England and Wales were facing a series of challenges. Rocked by a wave of riots, they had been blamed for failing to secure order or justice (Woolf 1990). The prison service had been reorganized as a semi-autonomous agency within the Home Office and had acquired a new director-general from the business sector. The government had announced its intention to privatize a series of new penal establishments and the era of new public management had begun.

This chapter starts with a similar question, posed under equivalent conditions of institutional and political disarray: can immigration detention centres be legitimate? Whereas Sparks, and others who followed him (for example Sparks, Bottoms, and Hay 1996; Liebling 2004; Crewe 2009), argued that penal power in its application and its effect is constrained by the need to be legitimate, the power of the state in detention seems almost unfettered. There is no automatic judicial oversight of the decision to detain and no statutory limit on the period for which a person can be held. Despite the fact that over one-third of detainees stay for longer than a month and six per cent have been held for more than a year (Home Office 2012), there is no obvious purpose of detention that inheres in the institution, leaving it hard to justify developing any particular regime or treatment programmes for these people. The message seems clear: detainees are going to be deported; they are not coming back; and the UK state is not responsible for preparing them to return to their country of origin.

In practice, of course, matters are more complex. Power does not flow entirely without check. Immigration removal centres (IRCs) are not, as some would argue, sites of ‘bare life’ or modern iterations of the Camp (Agamben 2005; De Genova 2010; Fassin 2011). Senior management and individual custody officers often go out of their way to assist—bringing specific food and cultural items for religious holidays, inviting in local charities, and, in one establishment at least, setting up an arrangement with a local credit union to help detainees access their savings that were otherwise unobtainable.[3] The people within detention centres are neither abject nor unrecognizable. Many are long-term UK residents, some of whom attended school in Britain and have family members here as well. Despite the emphasis on removal and deportation, nearly one-third ofthe population is released each year into the community either on temporary admission by the UKBA or bailed by an immigration judge. Detention centres are marked by resistance and creativity (Bosworth 2012) as well as by the vulnerability of their residents. They are sites where exclusionary migration policies clash with the long history of immigration to the United Kingdom and its resultant diversity.

Part of the challenge in understanding IRCs—and at least one reason why criminological accounts of legitimacy may falter—relates to this inconsistency in the expression and nature of state power. As sites of border control, the state is at the same time more intrusive and, paradoxically, sometimes impotent. Many of the administrative goals ofdetention—documentation, deportation, or removal[4]— require the agreement of another sovereign power (see Aas, Chapter 1 in this volume).[5] At the more local level, detainees may not be able to avoid deportation indefinitely, but they can, in quite banal ways, resist it for some time. They may destroy their documents or provide a false name, address, or nationality—simple acts which make it taxing for the state to prove their identity and obtain travel documents, both of which are necessary for deportation.

In short, IRCs reveal how, under conditions of mass mobility, state power is both enhanced and, simultaneously, diminished. The question that then arises is whether the notion of ‘legitimacy’, with its intellectual roots in liberal communitarian philosophy, is still useful as a tool either of understanding or critique. Does this concept, which assumes a ‘congruence between a given system of power and the beliefs, values, and expectations that provide it justification’ (Beetham 1991: 11), work in an unbounded and mobile world? On what basis would the legitimacy be determined of an institution like an IRC that transcends the sovereign state in which it is located? Who would have a say, when the community in detention (not to mention those who are affected by their custody) are not fellows of a single political community (Fraser 2007)? How would they register their views and by what means would we recognize them as such?

Such questions are part of a broader debate about whether the liberal political project extends to foreigners (Honig 2001; Benhabib 2004, 2006; Bosniak 2006; Fraser 2007, 2008; see also Gibney, Chapter 12 in this volume). In this chapter I explore matters more narrowly, documenting how staff and detainees make sense of immigration detention. Drawing on 18 months of fieldwork across five British IRCs,[6] I find considerable confusion and ambivalence in their testimonies and a striking reliance on the prison to make sense of where they are and what they are doing. Their accounts unsurprisingly reveal an extensive legitimacy deficit facing detention. However, this deficit does not lead to the crises that criminological scholarship would lead us to expect, suggesting perhaps that we need a new critical vocabulary for understanding the power in and of such places.

  • [1] I gratefully acknowledge the assistance of Blerina Kellezi with whom I worked in gathering theinterview material on which this chapter draws. I would also like to thank Katja Aas, Hindpal SinghBhui, Richard and Michal Bosworth, Matt Gibney, Emma Kaufman, Ambrose Lee, Arjen Leerkes, andIan Loader, for their feedback on an earlier draft. A paper from that draft was presented at the Bordersof Punishment conference on 20 April 2012 at the Centre for Criminology at the University of Oxfordand benefited from comments I received. The research was funded by a British Academy ResearchDevelopment Award, the Nuffield Foundation, and by the Oxford University Press John Fell Fund.I am grateful to Alan Kittle, formerly Head of the Returns Directorate at the UK Border Agency(UKBA), for granting me research access and to all of the custodial and UKBA staff and detainees whoparticipated in the project.
  • [2] All respondents have been anonymized appearing with a pseudonym, their nationality or, in thecase of staff, their officer grade, and the centre where the interview was conducted. The centres areabbreviated: TH = IRC Tinsley House; CB = IRC Colnbrook; BH = IRC Brook House; YW = IRCYarl’s Wood; and CH = IRC Campsfield House.
  • [3] IRC Yarl’s Wood works with the Bedford Credit Union to help detainees transfer funds fromsavings accounts in banks that require them to present their savings book in person to a cashier.
  • [4] Although these last two have the same effect of forcible ejection from the UK and a timerestriction on future return, legally they are different categories. Usually ex-prisoners are deportedwhereas visa overstayers or failed asylum seekers are removed.
  • [5] Detainees and UKBA staff regularly reported India and China being particularly slow in thisregard.
  • [6] Over this time, together with Dr Blerina Kellezi, I spent more than 1,600 hours in the field. Usingmixed methods, I designed and we administered a survey to around 200 detainees, informallyinterviewing and chatting with many more. We also conducted 80 structured interviews with staff.Our mixed methods have produced a mass of data, from which various themes are emerging. Thischapter concentrates on just a handful. The overall project is written up in detail elsewhere (Bosworthand Kellezi 2012, 2013a, 2013b; Bosworth 2012, 2014, forthcoming).
 
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