Global crimes 5

Global Crimes (Border Criminology)

• Course name: Global crimes (border criminology)
• Instructor: Valeria Ferraris
• Days: Thursday and Friday
• Time: 2-4 PM

Immigrant Detention Taxonomy - Principles

• Detention is initially contrary to the principle of personal liberty and must be justified under Article 5(1) of the European Convention on Human Rights (ECHR).
• Detention conditions must not constitute torture, inhuman, or degrading treatment, as prohibited by Article 3 of the ECHR and interpreted by the European Court of Human Rights (ECtHR).

Immigrant Detention Taxonomy - Key Questions

• Detention is based on criminal law or administrative law?
• Are detention centers open (like reception centers) or closed?
• What are the mechanisms for oversight of detention facilities?

Immigrant Detention Taxonomy - Who Can and Cannot Be Detained

• WHO CAN be detained:
  • Third-country nationals entering a member state without authorization.
  • Third-country nationals facing deportation or extradition.
• WHO CANNOT be detained:
  • Foreigners with valid residence and work permits (unless expulsion is ordered).
  • EU citizens
  • Third-country nationals with "strong" agreements with the EU.

Immigrant Detention Taxonomy - Pre-Admittance Detention or Detention Upon Arrival

• Detention and Arrival → Pre-admittance Detention or Detention Upon Arrival

• Detention and Asylum → Detention of asylum seekers

• Detention and Irregular Stay → Pre-removal detention

• Detention and Expulsion

• Reference: Guild E (2005) A Typology of Different Types of Centres for Third Country Nationals in Europe. Strasbourg: European Parliament Briefing Paper

UN Working Group on Arbitrary Detention

• 4 Main categories of people detained (UN Working Group on Arbitrary Detention, 1998: para 32).
  • Denied access to territory (refusal of entry).
  • Illegally entered territory (irregular migrants).
  • Overstayers.
  • Asylum seekers where detention is necessary by authorities
• 8 different types of facilities where migrants may be taken into custody (UN Working Group on Arbitrary Detention, 1998: para 33)
  • Custody areas near borders.
  • Police stations.
  • Facilities managed by penitentiary administrations.
  • Ad hoc facilities.
  • House arrest.
  • International areas/transit zones.
  • Gathering centers.
  • Hospitals.

Mapping immigration detention

• Global Detention Project
• https://www.globaldetentionproject.org/detention-centres/map-view
• https://altreconomia.it/locked-in-from-above/

The theoretical debate on immigration detention

• Administrative law: Detention without a crime (different from prison).
• Detention experienced as more punitive (unpredefined time, living conditions, fewer rights, confusing motivation).
• Locations: Not just detention facilities (police stations, airports, etc.).
• Lack of transparency in institutions.

The problem of Legitimacy

• Penal power is constrained by the need for legitimacy.
• Legitimacy is a necessary quality of the state (to critique and understand power).
• Legitimacy assumes a congruence between a system of power and the beliefs, values, and expectations that justify it.

What are the characteristics of criminal detention (prison)?

• Reasons for detention: Punishment for a crime (criminal law).
• Purpose of detention: Primarily rehabilitation.
• Physical location: Defined facilities.
• Duration: Clarity about time served.
• Regulation: Internal regulations and inmates' rights.

Functions of criminal detention

• Deterrence: Prevention of crime through fear of punishment.
• Rehabilitation: Re-socialization of offenders to reintegrate into society.
• Incapacitation: Removing criminals from society to prevent future crimes.
• Retribution: Providing victims and society with a sense of justice.

Legitimacy in prison

• Purpose connects with the functions of punishment (deterrence, retribution, rehabilitation, incapacitation).
• Functioning: how things work and fail.
• The state’s coercion versus detainees' rights.
• Prison rules.

Legitimacy of immigration detention

• What is legitimacy in prisons versus immigration detention?
• Legitimacy in prison relates to the how of detention—centered on rehabilitation rhetoric.
• Legitimacy in immigration detention focuses on the why—the aim of deportation.
• The discourse should focus on the initial reasons for detention and related immigration policies.

What are the characteristics of immigration detention?

• Reasons for detention: Illegality (administrative law/civil law, exclusion, banopticon).
• Purpose: Primarily deportation.
• Locations: Multiple facilities.
• Duration: Lack of clarity, unclear internal regulations.
• Regulation: Human rights concerns.

Justifying pre-removal detention

• Official purpose of immigration detention: Deterrence and deportation.
• Problems: Not all detained individuals are deported.
• Living conditions of detention centers are problematic and highly contested.

Comparative perspective in deportation regimes

• Data (2014-2023) on third-country nationals subject to immigration enforcement in EU member states.
• Visualizations displaying figures of immigration categories (e.g., refused entry, ordered to leave, returned individuals).

Detention trends in varied EU nations

• Various charts/graphs on yearly deportation trends in different European countries (e.g., Denmark, Finland, Sweden, Slovakia, Hungary, Greece, Spain, Belgium, France).

Legitimacy of immigration detention

• Deportation justification and detention for those not deported.
• Deterrence, punishment relating to illegality, and harm.
• Lack of rules, poor conditions.
• State challenges in enforcing detention effectively.

The Undeported and functions of detention

• Co-existing motives for detention of those not deported (Leekers and Broeders, 2010).
• Deterring illegal migrants.
• Incapacitation and management of migrants' pauperism.
• Symbolic control of borders and urban order.

Deterring illegalised migrants

• Detention as a punitive measure to pressure individuals to leave the country.
• Aim to deter future illegal migrants.
• Focus on migration and residence laws.
• Level of suffering might suggest the intention to inflict pain or revenge.

Incapacitation and management of migrants’ pauperism

• Detention as a form of relief for marginalized migrants—in effect resulting in repeated detentions.

Managing people anxiety and affirming capacity of the State

• Physical/symbolic exclusion zones signaling state control.
• Communicating a state’s continued dominance over geographical and social borders.

See you next week!

• Course continuation announcement—upcoming sessions.