Immigration Detention, Punishment and the Transformation of Justice
| Author | Mary Bosworth |
| Published date | 01 February 2019 |
| Date | 01 February 2019 |
| DOI | http://doi.org/10.1177/0964663917747341 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2019, Vol. 28(1) 81–99
Immigration Detention,
ª The Author(s) 2017
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DOI: 10.1177/0964663917747341
Transformation of Justice
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Mary Bosworth
University of Oxford, UK
Abstract
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.
Keywords
Administrative power, border criminology, immigration detention, mass mobility,
punishment
States have been quick to claim that if a coercive measure or detention regime is for
prevention or regulation or administrative convenience it is not, by definition, punishment.
Yet this privileging of purpose does not mitigate the pains imposed by coercive measures, so
to re-label measures as non-punitive is often nothing less than a cynical subversion of the
criminal process and its human rights protections.’ (Zedner, 2015: 4)
Introduction
Over the past two decades, the UK, in common with other governments around the
world, has increasingly criminalised migration violations and deployed police and
Corresponding author:
Mary Bosworth, University of Oxford, Manor Road, Oxford OX1 3UQ, UK.
Email: mary.bosworth@crim.ox.ac.uk
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Social & Legal Studies 28(1)
prisons in the service of border control. They have opened a series of immigration
detention centres built like prisons while devising additional consequences for foreigners
who break the law. Such developments, which reach their apex in the mandatory depor-
tation orders that now face many non-citizen offenders, have not only blurred the
boundaries between what were previously two distinct areas of law but have significantly
reshaped the punishment of foreigners, unhinging it from its criminal justice, territorial
and temporal base. When individuals are given deportation orders as part of their crim-
inal sentence, decisions made in local courts affect places and people far from where the
crime was committed. In these cases, too, punishment reaches back into people’s lives
and forward into their futures, as their past successes, children, hopes or aspirations are
all disregarded in the name of border control (Bosworth, 2017a).
Yet, despite some novel powers, much of the treatment of foreigners remains familiar.
Most obviously, the majority of those subject to the intrusive state interventions carried
out in the name of border control are not white (Bosworth et al., forthcoming a; Her-
na´ndez, 2012). Nearly all those detained and deported are men. There are other institu-
tional connections; border control occurs within the criminal justice system as
immigration officers are deployed in prisons, police custody suites and the courts. Over
the course of their career, individual staff members may move between the two systems,
working for the prison service before taking up a post in a detention centre, or being
seconded to work as a police officer alongside border force agents, for example. So, too,
many of the overarching structures and policies encompass the two fields. In the UK and
the US, for instance, immigration detention is operated under a contracting out model,
with many custodial services provided by private custodial companies or the prison
service. Elsewhere, the police do a lot of this work.
As scholars in the nascent field of border criminology1 have argued, the powers
unleashed by the integration of immigration and criminal law are painful and often feel
deliberately punitive (Kaufman and Bosworth, 2013; Turnbull and Hasselberg, 2017; Warr,
2016). Detainees find many similarities between the two systems, asserting passionately
over and over again that, ‘I feel like I’m in prison’, no matter the administrative nature of
their confinement. For these people, and their family and friends, however difficult the state
sometimes finds it to enforce detention or removal, living in the shadow of this form of
coercion hurts. Yet, with some exceptions, because immigration law is not part of the
criminal justice system, its nature and effects continue to be overlooked in much of the
literature on punishment (see, inter alia, Aas and Bosworth, 2013; Aas, 2014; Barker, 2017b,
2018; De Giorgi 2010; Herna´ndez, 2014; Spena, 2014; Stumpf, 2006; Zedner, 2015).
In this article, drawing on research I have been conducting since 20092 in British
immigration removal centres (IRCs), 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 punish-
ment. The argument proceeds as follows. First I lay out an empirical framework, pointing
to the nature and impact of mass mobility, sketching ways in which migration is affecting
the criminal justice system. I then identify a series of key concepts from the wide body of
literature on punishment and explore their application to immigration detention and
deportation. As foreigners face additional, administrative burdens and are subject to
processes of differentiation and exclusion simply by virtue of their citizenship, I suggest,
Bosworth
83
basic values of due process, fairness and equality of treatment and outcome, are drawn
into question. As a consequence, justice itself is transformed.
Throughout this piece, I use first-hand accounts from staff and detainees to ground the
discussion. Quotes have been chosen for their illustrative nature. Drawn from many
years of qualitative research across British detention centres, they capture widely held
beliefs. Yet, I offer them here, not as representative ‘proof’ so much as a vehicle for
thinking about the relationship between punishment and migration control. By including
the voices of those subject to these policies I also seek to humanise the debate about
them. Testimonies demonstrate the emphasis border control places on membership and
belonging, and the pain that exclusion causes. In their attention to the punitive form of
immigration detention and deportation, staff and detainees reveal key commonalities and
disjunctures with criminal justice practices that raise important questions about the
boundaries of penality. What are we to make of a system in which due process protec-
tions are withheld from those without citizenship, for example? How should we under-
stand carceral institutions that resemble prisons, but in which nobody is serving a
criminal sentence? Do the additional burdens foreign offenders face as a consequence
of their criminal sentence, change its purpose or legitimacy?
Criminal Justice in an Era of Mass Mobility
The scale of mobility has accelerated in recent years in response to an enduring period of
global financial insecurity, a series of ongoing bloody conflicts, and, increasingly, as a
result of climate change (IOM, 2014). In addition to these factors, many people move for
less dramatic reasons, to take up economic opportunities, family reunification and edu-
cation. According to the United Nations Refugee Agency (UNHCR) and the Interna-
tional Organisation of Migration (IOM), there are now 65 million refugees and internally
displaced, alongside over 230 million migrants living outside their country of birth
(IOM, 2015; UNHCR, 2017).
Most do not travel far. While Syria, Afghanistan and Somalia account for around
half the sum of refugees, for instance, the countries that house the most are nearby:
Turkey, Pakistan, Lebanon, Iran, Uganda and Ethiopia (UNHCR, 2017). People often
want to stay close to home, and, given their vulnerabilities to persecution, many have
limited resources to do otherwise. In any case, visa restrictions make it very difficult
for them to relocate; states in the global north rarely issue visas to citizens of states in
conflict, effectively blocking their legal entry (Aas, 2014; Bigo and Guild, 2005;
Costello, 2015).
In contrast to those fleeing war or persecution, nearly half of the far larger sum of
migrants reside in just 10 countries: Australia, Canada, the US, France, Germany, Spain,
the UK, the Russian Federation, Saudi Arabia and the United Arab Emirates (IOM, 2015:
2). There they concentrate in urban areas where they contribute to the formal and
informal economies, constituting varying proportions of the resident community.
As the number of people on the move has grown, even though most have remained in
their home region, politics in the global north concerning immigration has hardened.
Across Europe, the US and Australia, right-wing nationalist parties have flourished,
while left and centrist ones have been unsure how to respond. From Donald Trump’s
84
Social & Legal Studies 28(1)
(2015) racist rhetoric about ‘Mexican rapists’ and his promise to build a wall to block
their entry, both of which formed part of his successful bid to become US President, to
the British referendum 1 year later, on membership of the European Union, immigration
and the figure of the ‘migrant’ has galvanized an...
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