In recent years, Europe and the world have seen unprecedented waves of migration. In an attempt to manage these flows, reduce the number of undocumented foreigners and increase the rates of repatriations, governments have increasingly turned to immigration detention. In Italy, this practice was normalized in 1998, with the Turco-Napolitano Law (Law n. 40/1998) and, since then, administrative detention is used as one of the main tools for the expulsion of undocumented people. In 2018, the adoption of the so-called Salvini Decree (Law Decree no. 113/2018) further exacerbated its use, allowing for an increase in the capacity of detention centres and the maximum number of days of detention, as well as the suspension of humanitarian protection. Contrary to what has been affirmed by governments, these reforms have proven ineffective both in terms of repatriation and integration. Less than half of those detained are actually repatriated (45% in 2019) and the rest find themselves in conditions that alienate and exclude them from society. Detention facilities themselves present a number of serious issues, namely limited access to medical, legal and social assistance, inadequate treatment of vulnerabilities, and often dire hygienic and sanitary conditions. The system in place, hence, poses high costs in terms of efficiency and human rights violations – a shift towards the implementation of effective alternatives to detention is essential.In this context, the Italian Coalition for Civil Liberties and Rights (Coalizione Italiana per le Libertà e i Diritti civili – CILD) and Progetto Diritti have launched the project “Alternatives to detention: Towards a more effective and humane migration management”, with the goals to promote engagement-based alternatives to detention, and to build evidence and raise awareness on their benefits. Within the project’s framework, a series of interviews with experts (both policy experts and “experts from experience”) will be conducted in the upcoming months and will be published in this column of Open Migration dedicated to the topic of alternatives to immigration detention.
First up, Mr Jerome Phelps: policy expert, former Executive Director of the International Detention Coalition and former Director of Detention Action.
Is detention actually necessary and effective in the management of migration? Why?
There has been a huge expansion of detention, over the last couple of decades, as a central tool of immigration enforcement, but with really very little evidence base that it is effective. It is generally used because it is seen by governments as the one tool to deport migrants. However, it has never really been thoroughly analysed for cost-effectiveness. Generally, there is considerable evidence that it is overused in circumstances where it is very harmful for migrants, their wellbeing and their mental health (of which there is a growing and abundant evidence base) and very ineffective for states. Return rates are often actually very low from detention; many migrants are detained, often for long periods, and then released. It also has a very alienating impact on migrants. Not only does it harm their mental health, but it gives them a very strong message: the system is hostile and they should fight against it. Therefore, in circumstances in which their cooperation is required, such as establishing their identity, detention is actually very counterproductive.
What we are currently seeing, particularly in Europe, is a growth in detention not as an evidence-based policy, but out of a sense of panic. Since there is a high political priority on having an effective immigration governance, particularly in returning migrants, and there is funding to build and operate detention centres that limiting the personal liberty of foreigners becomes the automatic move for governments. Governments feel they should be doing more to reassure populations, who are experiencing growing xenophobia, but there is very little confidence that it is actually effective. I think that the real opportunity, even in this difficult political time, is to work with governments, the EU and the EU Commission to explore to what extent detention needs to be central to immigration control.
What are the alternatives to detention?
There is a growing evidence base around the world that the opposite approach to detention, the active engagement of migrants, is actually more efficient and cost-effective for governments, as well as better for the well-being of migrants. Immigration governance is an institution and any institution (such as schools, prisons, criminal justice systems) works effectively when it relies on the consent and cooperation of people subject to it. Immigration governance is no exception. If it dehumanises the people subject to it, migrants in situations of irregularity, so that they do not consent or cooperate, it is almost impossible for governments to run migration governance systems effectively. The opportunity is to think of a migration system that wins the consent of not all, but enough migrants. Evidence suggests that such a system would be based on, unsurprisingly, talking to migrants, treating them as human beings, guaranteeing effective communication between them and immigration authorities about their situations, the requirements of the system and the reasons for decision. The evidence is that when both migrants and immigration authorities are communicating effectively, and individuals are actively engaging in the system, better decisions get made and migrants are more likely to comply with the system as they go through it.
Ultimately, if they are refused, migrants are more likely to comply with return decisions and agree to voluntary returns, and are less likely to abscond, if they have some sense of having gone through a fair immigration system. Voluntary returns are far cheaper than detention for governments. Even more so as the numbers of irregular migrants increase. Nowhere in Europe has the capacity to detain all irregular migrants. It is really not an option for governments. They have to find ways to get individuals to trust their system and detention, as we know, is corrosive of that trust, it undermines community confidence as well as confidence of individuals.
So, what are the alternatives to detention? There has been a lot of focus in Europe for many years on a legal checklist of possible alternatives to detention that are used already by states, such as reporting restrictions, designated residence and bail. These are alternatives based on reduced degrees of coercion, but that still involve elements of coercion, which can be harmful and restrictive. In comparison to detention, they are less corrosive of trust, and they can be valuable in enabling the authorities to feel they can allow migrants to live in the community while they resolve their cases. However, there isn’t a huge evidence base that these kinds of alternatives increase cooperation and trust in the system, or the levels of voluntary return.
The more impressive results have tended to come from alternatives based on cooperation. The Swedish system is based on having a case manager, who works with migrants to make sure they can access the range of information services, accommodation, health care, legal advice that they need both to stabilise their lives in the community and to actively engage with the system. In Sweden, Australia and other countries, it has been demonstrated that having one point of contact who can help individuals negotiate this range of services around the system, is very effective at increasing trust. Alternatives based on case management are particularly helpful for individuals in more complex situations. They can be a way for detention to be avoided, and for individuals to go through the system and resolve their cases in the community.
In 2012, you said that one of the main reasons of the growth of immigration detention in Europe was the weakness of the human rights framework on the subject, referring to Article 5 ECHR as the ‘right to be detained’. Although the topic of alternatives to immigration detention has been receiving greater attention in Europe, the human rights framework remains unchanged and governments still make limited use of alternatives. Why has there been little substantial progress? What should the priorities and prospects be in the current political climate?
I think that the legal framework gives governments that leeway to use detention in a relatively unrestrained way. It allows routine detention, making the politics of it crucial. Do governments feel politically motivated or even obliged to detain migrants on a large scale despite the human and financial cost? Obviously, over the last few years, asylum and migration have been a huge issue across the EU. There has been a lot of pressure of the far-right, in particular, to close borders and deport migrants. There has been substantial pressure for expansion of detention in many countries. However, it hasn’t necessarily translated into dramatic increases of detention in the majority of European countries. There have been much more dramatic developments in terms of access to asylum on the borders than on expansion of detention. This is to a large degree because building detention centres is slow and expensive, and, in crises, it is not the most appealing option. Even states, like Italy, that have promised to dramatically increase their detention capacity, have moved quite slowly to do that.
I think that this gives us, on the side of civil society, opportunities to redirect momentum. Governments are very interested now in the “how” of migration governance. There will be funding and resources available to build detention centres in the long-term, unless civil society and their allies can make the case that detention should not be the way forward for European migration governance. Asylum migration systems work better when they are not based on detention and coercion. There is a growing debate about alternatives to detention, there is a growing interest led in particular by the Council of Europe, but also increasingly by the Commission with recommendations promoting engagement-based alternatives, the involvement of civil society and NGOs, and the trust of migrants.
In fact, engagement-based migration governance to different degrees happens routinely across Europe already. Most migrants in a regular situation are not in detention. Europe does have a very strong civil society working with migrants, helping them to live in a sustainable way in the community while they go through migration systems. However, it has generally very poor levels of cooperation between NGOs and governments in terms of enabling migrants to live within the community. So there are opportunities to build on some of the good practices around reception, legal advice and community support to frame to governments that alternatives can help migrants to actively participate in migration systems, to cooperate and not abscond. They can also help the system to run better, if the government is willing to work more constructively with NGOs and vice versa.
Given the extent of the migration phenomenon and the weak commitment of governments, how can small-scale civil society projects initiate wider change? How can their quality and effectiveness be guaranteed if they are applied on a larger scale?
I think piloting at small-scale is a really good way to test what works. There is no one model of alternatives that you can say “this is what works” and that you can replicate in any state or national context. All the evidence is that alternatives need to be based on the particular national context, the challenges and political priorities of the authorities, the needs, strengths, resources of migrants going through the system, and the capacity of the community and civil society. Developing alternatives is a process which can bring together different actors to make more humane migration systems that currently rely on detention. This process needs to be done each time, in each national context, learning from different experiences.
So small-scale pilots are a good way for governments to test the water, make small investments, build relationships with civil society, and gradually work on scaling up, which is inevitably challenging. If piloting is evaluated effectively, learning at small-scale can inform larger scale roll-out, which can potentially involve multiple actors meeting different needs. Potentially, alternatives can be built up gradually from small-scale projects – there are different ways to gradually build towards larger-scale roll-out.
Do you have any experience you would like to share with us?
It’s really crucial for migrants in these systems to be playing an active role in the conversation around how systems can be improved. Detention is very dehumanising and migrants in detention are seen as prisoners, they are the “Other” who is very difficult to emphasise with. People’s views change very quickly when they are sitting at a table with someone who is saying: “I was detained for 4 years, this is what happened to me, this is my analysis of why the system is not working at the moment and this is my policy proposal”. If migrants can talk from their own personal experience to policy makers, that has far greater impact than a policy expert like me. At Detention Action, I once met a senior politician who wanted to reduce detention, but was very reluctant to include ex-offenders in any time limit. We held a meeting with her and we were joined by Freed Voices, one of our group of experts-by-experience. One of the participants was from the same part of London as this senior politician and had been in prison. He had very similar experiences to young men that she knew and was able to really change her perspective on the issue by talking to her as a lad from a London suburb. That is an important part of alternatives: migrants being actively involved as human beings in shaping the system, as well as participating their own cases. It all goes together as part of in humanising migration governance.
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