Arresting the mass detention of migrants: ‘Build trust, not walls’

In this #Unlocked16 article, Jerome Phelps of Detention Action writes for Open Democracy 50:50 on how “the pragmatic development of alternatives to detention with civil society at the fore can help to arrest the slide into the abyss of mass detention of migrants in Europe.”
The article was originally published by Open Democracy on 12 October.


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The possible future shape of immigration detention in Europe lies hidden between the lines of the Commission’s proposals for reform of the Common European Asylum System.  At first glance, the proposals seem largely to steer clear of detention.  Only gradually does it become clear that they would create a universe of increasingly punitive measures, leading inexorably to the detention of anyone foolhardy enough to still think that they can reach safety in Germany or Sweden by land and sea.
The Commission’s proposals, which were published in May and July 2016, take the form of a redrafting of the whole of EU asylum law, among other things recasting the Reception Conditions Directive, creating a fourth version of the Dublin Regulation (setting out which Member State is responsible for considering an asylum claim), and converting the directives on asylum procedures and qualification into regulations, which would be directly applicable in law in each state.
Detention is rarely mentioned in the proposals.  Only the proposed recast Reception Conditions Directive creates a new ground for detention, relating to risk of absconding, which is not on the face of it very different to existing grounds.  But not for nothing does the Commission insist that discouraging secondary movement is one of the themes of the reforms.
The proposals aim to use the asylum process itself to punish attempts to move on to another country.  If you have left Turkey, or another ‘safe country’, you will be sent straight back there, regardless of family ties in an EU state.  If that proves impossible, you may be punished with an accelerated asylum process, with less time to obtain evidence and make your case.  If the authorities think you plan to travel on to another EU state, they may impose a requirement to live at a designated residence or to report regularly to the authorities.  The proposals are clear: if you breach these conditions, and the authorities consider you to be at risk of absconding, you will be detained.
There is to be no immediate systematic detention of asylum-seekers, as in the UK’s notorious Detained Fast Track, suspended in 2015 following Detention Action’s successful legal challenges.  But the results may be much the same in countries on the EU’s external borders.  The inadequacy of reception conditions and asylum procedures in countries like Greece and Bulgaria create powerful incentives to try to reach better places to claim asylum.  Notwithstanding the Commission’s attempt to assert by fiat that the reformed Common European Asylum System will immediately ‘guarantee’ equal treatment everywhere, these inequalities will not change any time soon.  Migrants will continue to try to move on.  The result is likely to be detention, potentially on a massive scale.
Such an expansion of detention would have profound implications, not just for asylum-seekers but for all irregular migrants in Europe.
Nothing will change in the fundamentals of EU law, under which asylum-seekers can only be detained ‘under very clearly defined exceptional circumstances’, and detention of any migrant must be proportionate and necessary, limited to where no less coercive alternatives can be used.  What will change  if the new proposals are passed is that the exception will become the norm: the desire to get somewhere where you can be safe will be the ‘exceptional’ circumstance that will justify detention – in some countries, potentially for almost everyone.
These are, of course, just proposals.  They will be controversial, and they will not go through unmodified.  Not least, the Visegrad countries of eastern central Europe will object to even the limited provisions for the relocation of asylum-seekers within the EU.  But they demonstrate the height of the stakes in the immigration detention debate.
How, then, to arrest this slide into the abyss of mass detention?
The last year, and in particular the EU – Turkey deal, graphically demonstrates the ineffectiveness of appeals to legality, human rights and ‘European values’.  Now that European leaders see the survival of the EU itself as being at stake on the shores of Greece and Italy, principled arguments to the Commission against mass returns to Turkey have proved ineffective.  (Fortunately, so far, no more ineffective than the attempts to actually enforce such mass returns.)  The reformed Common European Asylum System, as it stands, will significantly extend the Commission’s power, potentially preventing for example Greek judges from quibbling whether post-coup Turkey is really such a safe country.  If the detention nightmare is to be averted, we need arguments that are not only legally grounded but also politically effective.
The most plausible arguments start from alternatives to detention.  These are the ‘less coercive measures’, unchallenged at the heart of EU law, which must be considered before detention is used. In theory, they should make it harder for states to justify detention.  But the Commission’s reforms reframe them as stepping stones to detention: first, the asylum-seeker is given conditions on their freedom, to report regularly and live in a certain place; then, when they breach those conditions, they can be detained.
This misuse of alternatives must be contested.  We cannot afford to stop taking about alternatives, as it allows us to use the language of European law and values back at the Commission and Member States.  Alternatives need not be set up to fail and provide justifications for detention.  The Commission’s proposals highlight the risk that alternatives set up by states can be based on enforcement and mistrust, and route migrants towards detention.
As I have argued previously, there is another strand of alternatives to detention.  Usually with the active involvement of civil society, these alternatives are based not on enforcement but on engagement with migrants.  They start from the common sense premise that immigration and asylum systems that treat migrants with respect are more likely to be respected by migrants.  NGOs, communities and faith groups already have strong trust relationships with migrants, and are in a much better position than states to support them to participate actively in migration procedures where they are.
These alternatives can also address the crucial fact that liberty from detention is no liberty at all, if you are destitute on the street, without legal advice, without any effective opportunity to stabilise your situation. They can show governments that it is in their interests to provide decent reception conditions, advice and information, which can incentivise migrants to engage fully with their cases.
Such alternatives need the active involvement of civil society, in developing, influencing and implementing projects that can get migrants out of detention, reduce the use of detention, and improve conditions of life in the community.  I have described how this is already happening even in the most desperate circumstances in Greece, where small NGOs like METAdrasi are developing innovative models.
Detention Action’s new report, Without Detention, sets out the potentially crucial role that the UK could play in the development of alternatives, from a very different migration context to Greece.  The UK is regionally important here because it has been at the forefront of trying to resolve migration control challenges through detention: the largest detention estate in Europe, the only use of detention without time limit.
Crucially, the UK Government is finally acknowledging that this approach has not worked; following the critiques of the Parliamentary Inquiry and the Shaw Review, the Government has promised to reform and reduce the detention system; detention centres are closing.
Here, alternatives to detention can be a way to reinforce and accelerate this reform process.  If the choice is detention or nothing, decision-makers will tend to choose detention; but if a range of alternatives to detention can be developed, addressing different needs and risks, the Home Office can become more confident in resolving immigration cases in the community.  And crucially, in closing more detention centres.  Detention Action’s Community Support Project is already showing how this approach can work for even the most complex groups, young ex-offender migrants with barriers to removal.
These isolated examples need to become part of a movement of alternatives to detention across the region.  Despite the strong words in EU law, committing to engagement-based alternatives is a leap for most governments – the sense that other states in the region are taking the same approach can make it easier.  There is growing international momentum towards the development of alternatives, but much more is needed in Europe.
The launch two weeks ago of Detention Action’s report demonstrated the beginnings of such momentum: NGOs in the most diverse of national contexts are seeking to develop alternatives.  In the profoundly challenging political context of Ukraine, Right to Protection are taking advantage of a new law providing for alternatives for the first time to explore how civil society can make these provisions effective in practice.
In Cyprus, Future Worlds Centre are developing a pilot that could shift an immigration control system that has been very focused on detention, as part of their longer-term advocacy to reduce detention.  Significantly, their project would involve little that the organisation does not already do: in common with many community organisations, Future Worlds Centre already provide the individualised case management that is at the heart of the most effective alternatives.
Cyprus is an excellent example of how this regional momentum could be developed.  It is a small country, with limited numbers of migrants, and only one detention centre.  It is at the margins of the migration ‘crisis’, and the political stakes are correspondingly lower.  As such, it could much more easily shift towards alternatives than its larger and crisis-ridden neighbours.  As an EU Member State, it could become a vital showcase for the effectiveness of alternatives.
The examples of the UK, Ukraine and Cyprus demonstrate just how different alternatives will need to be, to address specific political and migration contexts across Europe.  But there are common themes: in each case, civil society has the knowhow and dynamism to make alternatives work, both in addressing state priorities and meeting the needs of migrants.
In each case, alternatives will fundamentally only succeed if they recognise the perspectives and priorities of migrants themselves.  Immigration control based on objectifying migrants as passive objects of control may be doomed to a cycle of ever greater coercion and ever greater resistance.  Alternatives to detention offer a way to restructure immigration systems based on recognising migrants as active agents who make their own decisions.
As Kasonga, of the Freed Voices group of experts by experience, told the Detention Action launch, the walls of detention are ‘a clear advert for distrust’.  He had to wait for two years in detention for a single moment of respect and trust, from the detention centre manager, at the moment of his deepest crisis.  Instead, that respect should be routine throughout the immigration system.  In Kasonga’s words, alternatives need to ‘build trust, not walls.’
This article is published as part of ‘Unlocking Detention’ – an annual ‘virtual’ tour of the UK’s detention estate, which aims to shine a spotlight on one of the gravest civil liberties issues in Britain today. To find out more about how to get involved in this year’s tour, visit www.unlocked.org.uk and follow #Unlocked16 on Twitter.

Build Trust, Not Walls

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(Image: Kasonga at Detention Action’s recent report launch. Photo credit: Eiri Ohtani)
By Kasonga, a member of the Freed Voices group.
I was detained in prison under immigration powers, and then in Harmondsworth and Colnbrook IRCs, for over two years altogether. The ‘IRC’ stands for ‘Immigration Removal Centre’. Removal is the key word here. From the very first day I was detained pending deportation I knew I could not be returned because of Home Office Country Guidance. I asked my solicitor, the courts, and the Home Office the same question: “why are you locking me up when you yourself acknowledge you cannot deport me?” The answer was always the same: “you cannot be released because of the risk that you re-offend.”
Immigration is immigration. Asylum is asylum. A criminal court is a criminal court. They are three separate things. In this country, however, the Government is very happy to confuse them all. Once you’ve served your sentence, you’ve paid your debt to society, you should be freed. Instead, migrants with convictions to their name serve double sentences. Although, this is detention and this is the UK. And that means no time-limit and actually, more of a life-sentence.
The sense of injustice swells inside of me when I think about it. I felt like the specifics of my case were completely ignored – my long-term detention came down to the fact I was a foreigner, little else. My experience inside broke the trust I had in the Government, and the country I have lived in for the last twenty years.
The first time I heard about alternatives to detention was in a Freed Voices session after I’d been released. I was shocked. I could not believe it. ‘You are telling me there is another way to control immigration that is cheaper, more humane, and more efficient for the government, and they aren’t using it?’ I was very angry, and confused. Detention clearly doesn’t work and the way-out is sitting in a drawer at No.10! Alternatives can be a win-win, for everybody – for the government, for the taxpayer, for the individuals, families, communities otherwise broken by detention.
So what is stopping them?
In 1994, there were 300 or so people in detention. Last year, nearly 33,000 people were detained. This feels like the biggest obstacle going forward in the push for alternatives. The routine must become the rare. In 1994, it was exceptional to put someone in detention. In 2016, it exceptional as a migrant in this country to not experience detention, in one way or another, directly or indirectly.
But alternatives are a way for the Government to meet their immigration controls without criminalising migrants or depriving them of their liberty. They are cost effective and efficient. They offer the Home Office a way to actually practice the policy they preach: to use detention as a last resort, not as a first, because that’s ‘what they’ve always done’. Alternatives are a way of addressing the inhumanity of the UK’s current approach.
The Government need to ask themselves whether they are more interested in doing a good job or winning votes. Civil society need to push alternatives and hold the government accountable for not introducing them when they said they are committed to reform. Just as importantly, people with experience of detention need to speak out about the reality of detention and shape what alternatives should look like in light of those experiences. We understand the real problems at the root of the detention system in a way others cannot; we must be part of the solution.
This piece was originally published in Detention Action’s new report, ‘Without Detention: Opportunities for Alternatives’.

Hamid on alternatives to detention

This post is written by Hamid, who has experienced immigration detention.  His testimony was provided for Detention Action‘s forthcoming annual report.


 

In the three and a half years I was in detention, I was visited twice by the Home Office – first, they took my fingerprints and then to take my photo. That was it. They gave me no reasons why I was at Harmondsworth IRC or how long I would stay. The monthly reports they sent me just said they were waiting to hear back from the Iranian embassy. But I knew that without passport or ID card, the Iranian embassy would not give them travel documents. I knew it, the embassy knew it, the Home Office knew it, everybody knew it. The Iranian embassy even closed and they still kept me locked up! I could not understand why I was not being released. I co-operated from day one. I started to think the Home Office were evil and torturing me on purpose. I tried to understand their reasons but I could not find any. It did not make sense. I remember thinking to myself that ‘there must be another way’.

When I was finally released from detention I felt lost. I felt scared. I had been isolated so long I couldn’t look people in the eye. I was so used to only ever moving a few metres this way or that, I found it difficult to walk any more than that. The Home Office had turned off my brain for three and a half years, so I had trouble reading. Even basic street or shop signs.

Last week, almost fifteen years after I first claimed asylum, I won the appeal on my fresh claim. When I look back it is still very difficult to understand why I was ever in detention during this period. Even the Home Office do not seem to know. Earlier this year, they offered me tens of thousands of pounds in financial compensation. They admitted that my detention was unlawful. So why did they do it then? They knew I could not go back. They have lost lots of money, I have lost my mental health. So who won? I did not need to be locked up for them to telephone the Iranian embassy every few months. With support and structure, I could have been adding to society. That way, everyone would have benefited.

We must ask politicians the million-dollar question: if detention does not work, and there are better and cheaper alternatives, why is the UK government still putting people in detention?

I think it is because detention in the UK is Big Business.